1. There was no merit in the first ground of the amendment to the motion for a new trial. The court, in stating the contention of the accused, informed the jury that the accused claimed that he was justified in shooting Colar Craney, that he did so in order to save his own life; and instructed them that if he shot *458to protect his own life, he would be guilty of no offense. The court merely repeated, in substance, the defense set up by the accused in his statement on the trial, viz.: that he had to kill or be killed, that he shot to save his own life — that he had to kill the two men in self-defense. Moreover the court gave in charge section 70 of the Penal Code, defining justifiable homicide, a part of the definition there given being the killing of a human being “in' defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either,” omitting the last clause of the section in reference to the killing of one who attempts, in a riotous and tumultuous manner, to enter the habitation of another for the purpose of assaulting some person therein. The court also fully instructed the jury as to what constitutes a felony. The accused was not .really entitled to any instruction as to his right to slay one who might be attempting, by violence or surprise, to commit a felony upon his habitation or property, as there was absolutely no evidence in the case to authorize such an instruction, and, as wahave seen, the only felony claimed by the accused, in his statement on the trial, to have been attempted upon him was an attempt by the two persons killed to take his life. Nix v. State, 120 Ga. 162.
2.We have just dealt with one of the exceptions to the charge set out in the second ground of the amendment to the motion. The court did not, in this charge, express an opinion upon the evidence, but merely referred to the statement of the accused* that he killed the two persons under circumstances which authorized him to believe that his own life was in danger. Nor did the-language here used by the court tend to impose upon the accused the necessity of defending himself for the killing of Burns.
3. The portion of the charge set out in the third ground of tb,e amendment is not subject to the exception taken to it. As-we have said, in the first division of this opinion, the only defensa set up by the accused, in his statement to the jury, was that he-shot in order to protect his own life; and there was no evidence tending to sustain any other defense. The court did instruct thd jury, in other parts of the charge, as to the right of the accused to defend himself against a felony about to be committed upon his-person.
*4594. One of the assignments of error upon the charge, in the fourth ground of the amendment to the motion, is also sufficiently-dealt with in the first division of this opinion. As we have said, the court fully instructed the jury as to the definition of a felony, and the charge here complained of was not erroneous be-' cause it failed to “define what kind of a felony the [accused] may kill his antagonist to prevent.” What is said in, this connection sufficiently deals with the exceptions to the part of the charge' complained of in the fifth ground of the amendment to the motion for a new trial.
5. In that part of the charge excepted to in the sixth ground of the amendment, the court merely applied the doctrine of reasonable fears to that theory of defense set up by the accused in his statement to the jury; and the language of the charge is not susceptible of the construction that it was “the intention of the court to charge the law of a joint felonious intent and attack,” further than applicable to the statement of the accused that the two persons killed were, at the time, attempting to take his life. Neither did the charge here complained of tend to place the defendant upon trial for the killing of Burns, as well as Chaney.
6. The court gave in charge to the jury the section of the Penal Code in reference to the right of the accused, in the trial of a criminal case, to make a statement to the jury. This court has frequently held that this is a sufficient instruction in that respect, and really preferable to an elaborate explanation of the section.
7. In the eighth ground of the amendment to the motion, complaint was made of the failure of the court to give in charge section 72 of the Penal Code, which reads as follows: “If, after persuasion, remonstrance, or other gentle measures used, a forcible attack and invasion on the property or habitation of another can not be prevented, it shall be justifiable homicide to kill the person so forcibly attacking and invading the property or habitation. of another; but it must appear that such killing was absolutely necessary to prevent such attack and invasion, and that a serious injury was intended, or might accrue to the person, property, or family of the person killing.” There was no evidence that made the provisions of this section applicable to the case,*460nor was there in the statement of the accused anything which made them pertinent.
9. What we have said in dealing with the first ground of the amendment to the motion sufficiently disposes of the ninth ground, wherein it is complained that the court, while charging the previsions of section 70 of the Penal Code, restricted their application to the right to kill another to protect one’s own, life.
10. The tenth ground related to certain alleged newly-discovered evidence, which is briefly referred to in that ground oi the motion. There is, however, no reference in that ground, oi elsewhere in the motion, to any affidavits in support of this tenth ground. Immediately following the motion in the record, wg find what purport to be copies of a number of affidavits, in each of which there is a recital that it is to be used upon the motion for a new trial in this case. None of them appears' to have been filed under order of court and thus made part of the record, identified, or attached in any way to the motion or made a part thereof) and therefore none of them can be considered by this court in passing upon the ground of the motion based upon alleged newly-' discovered evidence. Glover v. State, 128 Ga. 1.
11. There was ample evidence to authorize the verdict, which vas approved by the trial judge, and this court can not say that he abused his discretion in refusing to grant a new trial.
