By the Court.
Warner, J.
delivering the opinion.
[1.] The first ground of error assigned in this case is, the rejection of that portion of the testimony of John Fennill, drawn out by the cross-examination, in which he stated, that “just after dinner the evening Moore was killed, Levi G. Bright, Daniel J. King and deceased had a quarrel at witness’ grocery, at the wagon yard, about a dollar; witness told them to hush it up, and they did so.” In view of the facts of this case, we think this evidence was competent to show that there had been cause of quarrel between the deceased and other persons, on the evening of the same day the deceased was killed ; the more especially as it appears that the deceased and prisoner were on friendly terms but a short time before he received the fatal blow, and it being somewhat doubtful from the evidence who struck that jblow, that it was a circumstance, of which the Jury were entitled to consider, in favor of the defendant.
[2.] The second ground of error is, the refusal of the Court to have the cross-examination of Charity Moor, which had been taken down in writing under the Statute, read over in her hearing for her correction or approval, atthe request of prisoner’s counsel; the Court remarking at the same time, in the presence and hearing of the Jury, “ never mind reading over the testimony taken down on cross-examination, it does not amount to much any way.” It was the right of either party to have the testimony of the witness read over in her hearing, in order that she might correct or approve it, as it was taken down in writing; the more particularly if either party entertained any doubt that it had been incorrectly taken down, or not taken down at all. The testimony of the witnesses’ is as it is taken down in writing atthe time of the examination, usually constitutes the criterion when counsel differ as to what has or has not been proved, and therefore, it is always important that it should be correctly taken down, in [146]*146the sense which the witnesses delivered it, and not in a different sense.
This object can best b'e accomplished by readingit over to the witness before he or she leaves the stand, when all the facts are fresh in the recollection of the counsel, the Court and the witness, so that all necessary explanations, corrections or omissions may then be made or supplied.
[3.] By the first section of the Act of 1850, it is expressly declared, “ that it shall not be lawful for any or either of the Judges of the Superior Courts of this State, in any case, whether civil or criminal, or in Equity, during its progress, or in h‘is charge to the Jury, to express or intimate his opinion, as to whát has or has not been proved, or as to the guilt of the accused.” The 2nd section of the Act makes it obligatory on the Supreme Court, in all such cases, to reverse the judgment and grant a new trial. 1 Cobb’s Dig. 462. The evidence of Charity Moore, on her cross-examination, was either competent testimony, or it was not. If incompetent, then it ought to have been rejected by the Court; if competent, then the defendant was entitled to the full benefit of it before the Jury, without any disparagement of it by the Court. Here the Court did not merely intimate its opinion, but expressly declared, during the progress of the cause, in the presence and hearing of the Jury, that the testimony of Charity Moore, on her cross-examination, “did not amount to much anyway.” The weight and credit to which that testimony was entitled, was exclusively a question for the Jury, and not a question for the Court, and is clearly within the prohibition of the Act of 1850.
[4.] The next ground of error taken is, that after the evidence for the State had closed, and after the prisoner’s counsel had announced to the Court that he would not introduce any evidence, John Fennill, a witness who had been sworn and examined on the part of the State, went to the presiding Judge, and told him privately, that he wished to make a correction in his testimony, (to wit), that when witness asked deceased who hurt him, deceased replied be knew who did it, and would have satisfaction; “ witness then asked deceased, if it was some one that [147]*147went off with the ¿wagon, and deceased replied that it was.” This additional facCiwas most material against the defendant. The evidence shows that the defendant was standing near the wagon when the Mew was stricken, and that immediately afterwards the defendant' and his brother drove off in the wagon. The witness/on his examination, said nothing about the additional bich he subsequently desired to state. This was not a : of his testimony which he had previously delivered on strictly speaking, but was the statement of an additional, , material fact. After the State had closed its evidence •the defendant, and the cause was submitted to the Jury i sides, it was not competent for the State to introduce /evidence any new or additional fact. Judge vs. The State, 8th Georgia Rep. 173.
question as to who struck the deceased the fatal blow, :ft in doubt, and the introduction of this additional fact would have tended directly to remove that doubt, by proving that it was some one who went off with the wagon that did it. In this state of the case, the witness applies to the Court to be permitted to state the additional fact, which fact the Court announced in the presence and hearing of the Jury. As a matter of course, the Solicitor General insisted that it should be received, and the counsel for the prisoner objected, and it was not received; but the question is, whether it was not error for the Court to announce the additional statement which the witness desired to make, in the presence and hearing of the Jury, and whether the defendant was not prejudiced by it ? The duty of the Court, under the circumstances, we think, was a plain one. The witness ought to have been promptly told by the Court, that the additional fact could not then be proved, and to have said nothing about it to the counsel, or in the hearing of the Jury; for the simple reason that the application was to be permitted to do an illegal act, as had been already adjudicated by this Court, in the case of Judge vs. The State. This was not an application by the witness to make a correction of his testimony already delivered, but was an application to state an additional and material fad, to which he had not previously testified. After the case [148]*148had been submitted to the Jury on the evidence, both by the State and the defendant, that the defendant was prejudiced or might have been prejudiced by the announcement made by the Court before the Jury as to what the witness desired to state, is quite apparent, in our judgment. The witness had been sworn and examined in the cause; the State had failed to make out an important link in the chain of testimony to convict the defendant beyond a reasonable doubt, as to the identity
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By the Court.
Warner, J.
delivering the opinion.
[1.] The first ground of error assigned in this case is, the rejection of that portion of the testimony of John Fennill, drawn out by the cross-examination, in which he stated, that “just after dinner the evening Moore was killed, Levi G. Bright, Daniel J. King and deceased had a quarrel at witness’ grocery, at the wagon yard, about a dollar; witness told them to hush it up, and they did so.” In view of the facts of this case, we think this evidence was competent to show that there had been cause of quarrel between the deceased and other persons, on the evening of the same day the deceased was killed ; the more especially as it appears that the deceased and prisoner were on friendly terms but a short time before he received the fatal blow, and it being somewhat doubtful from the evidence who struck that jblow, that it was a circumstance, of which the Jury were entitled to consider, in favor of the defendant.
[2.] The second ground of error is, the refusal of the Court to have the cross-examination of Charity Moor, which had been taken down in writing under the Statute, read over in her hearing for her correction or approval, atthe request of prisoner’s counsel; the Court remarking at the same time, in the presence and hearing of the Jury, “ never mind reading over the testimony taken down on cross-examination, it does not amount to much any way.” It was the right of either party to have the testimony of the witness read over in her hearing, in order that she might correct or approve it, as it was taken down in writing; the more particularly if either party entertained any doubt that it had been incorrectly taken down, or not taken down at all. The testimony of the witnesses’ is as it is taken down in writing atthe time of the examination, usually constitutes the criterion when counsel differ as to what has or has not been proved, and therefore, it is always important that it should be correctly taken down, in [146]*146the sense which the witnesses delivered it, and not in a different sense.
This object can best b'e accomplished by readingit over to the witness before he or she leaves the stand, when all the facts are fresh in the recollection of the counsel, the Court and the witness, so that all necessary explanations, corrections or omissions may then be made or supplied.
[3.] By the first section of the Act of 1850, it is expressly declared, “ that it shall not be lawful for any or either of the Judges of the Superior Courts of this State, in any case, whether civil or criminal, or in Equity, during its progress, or in h‘is charge to the Jury, to express or intimate his opinion, as to whát has or has not been proved, or as to the guilt of the accused.” The 2nd section of the Act makes it obligatory on the Supreme Court, in all such cases, to reverse the judgment and grant a new trial. 1 Cobb’s Dig. 462. The evidence of Charity Moore, on her cross-examination, was either competent testimony, or it was not. If incompetent, then it ought to have been rejected by the Court; if competent, then the defendant was entitled to the full benefit of it before the Jury, without any disparagement of it by the Court. Here the Court did not merely intimate its opinion, but expressly declared, during the progress of the cause, in the presence and hearing of the Jury, that the testimony of Charity Moore, on her cross-examination, “did not amount to much anyway.” The weight and credit to which that testimony was entitled, was exclusively a question for the Jury, and not a question for the Court, and is clearly within the prohibition of the Act of 1850.
[4.] The next ground of error taken is, that after the evidence for the State had closed, and after the prisoner’s counsel had announced to the Court that he would not introduce any evidence, John Fennill, a witness who had been sworn and examined on the part of the State, went to the presiding Judge, and told him privately, that he wished to make a correction in his testimony, (to wit), that when witness asked deceased who hurt him, deceased replied be knew who did it, and would have satisfaction; “ witness then asked deceased, if it was some one that [147]*147went off with the ¿wagon, and deceased replied that it was.” This additional facCiwas most material against the defendant. The evidence shows that the defendant was standing near the wagon when the Mew was stricken, and that immediately afterwards the defendant' and his brother drove off in the wagon. The witness/on his examination, said nothing about the additional bich he subsequently desired to state. This was not a : of his testimony which he had previously delivered on strictly speaking, but was the statement of an additional, , material fact. After the State had closed its evidence •the defendant, and the cause was submitted to the Jury i sides, it was not competent for the State to introduce /evidence any new or additional fact. Judge vs. The State, 8th Georgia Rep. 173.
question as to who struck the deceased the fatal blow, :ft in doubt, and the introduction of this additional fact would have tended directly to remove that doubt, by proving that it was some one who went off with the wagon that did it. In this state of the case, the witness applies to the Court to be permitted to state the additional fact, which fact the Court announced in the presence and hearing of the Jury. As a matter of course, the Solicitor General insisted that it should be received, and the counsel for the prisoner objected, and it was not received; but the question is, whether it was not error for the Court to announce the additional statement which the witness desired to make, in the presence and hearing of the Jury, and whether the defendant was not prejudiced by it ? The duty of the Court, under the circumstances, we think, was a plain one. The witness ought to have been promptly told by the Court, that the additional fact could not then be proved, and to have said nothing about it to the counsel, or in the hearing of the Jury; for the simple reason that the application was to be permitted to do an illegal act, as had been already adjudicated by this Court, in the case of Judge vs. The State. This was not an application by the witness to make a correction of his testimony already delivered, but was an application to state an additional and material fad, to which he had not previously testified. After the case [148]*148had been submitted to the Jury on the evidence, both by the State and the defendant, that the defendant was prejudiced or might have been prejudiced by the announcement made by the Court before the Jury as to what the witness desired to state, is quite apparent, in our judgment. The witness had been sworn and examined in the cause; the State had failed to make out an important link in the chain of testimony to convict the defendant beyond a reasonable doubt, as to the identity of the person who struck the fatal blow at the wagon; the witness comes into Court, and the Court announces that the witness desires to make the additional statement, “ that it was some on.e who went off in the wagon that hurt him” — thereby supplying that important link in the chain of testimony, which, although refused by the Court on the objection of the defendant’s counsel, could not have failed to have produced its effect on the minds of the Jury, to the injury of the defendant.
[5.] The last ground of error insisted on in this record is, to the charge of the Court to the Jury. The Court charged the Jury, among other things, “that if they believed from the evidence, that prisoner struck the fatal blow that killed deceased, then the law imposed on him the obligation to show he was justified in so doing, and makes the killing murder, and it is on the prisoner to produce evidence of justification, to reduce the crime to manslaughter, or justifiable homicide, if he could by proof'’
We are clearly of the opinion, this portion of the charge of the Court is erroneous, and especially so in view of the facts of this case. The defendant introduced no evidence at the trial; the only evidence before the Court and Jury was introduced on the part of the State. Upon this state of facts, the Court charged the Jury, that it was on the prisoner to produce evidence of justification, to reduce the crime of murder to manslaughter, or justifiable homicide, if he could by proof. Now, as the defendant produced no evidence or any proof of justification, or mitigation of the highest grade of homicide on his part at the trial, the Jury were bound, under the charge of the Court, to have found him guilty of the crime of murder, if he struck the fatal blow which killed [149]*149the deceased; notwithstanding the evidence produced on the part of the State, might have made out a clear case of manslaughter, or justifiable homicide. The fatal error in the charge of the Court is, that the prisoner is required to produce evidence of mitigation or justification on his part, to reduce the crime of murder to any of the inferior grades of homicide; whereas, the mitigation or justification, may as well be shown by the evidence on the part of the State, as by proof introduced by the prisoner. If the defence is made out by the witnesses on the part of the prosecution, then the defendant need not call any; but if not, then the defendant must call witnesses, and make out his defence by proof. Archibald’s Criminal Pleading, 213. The Court below should have instructed the Jury in this case according to the rule stated by this Court in Davis vs. The State, 10 Georgia Rep. 102. Did the evidence establish the fact that the defendant committed the homicide? and if so, what grade of the offence does it .show it to have been ? Was it murder, voluntary manslaughter, involuntay manslaughter in the commission of an unlawful act, involuntary manslaughter in the commission of a lawful act, without due caution and circumspection, or justifiable homicide?
[6.] Whenever there is any doubt as to the grade of the of-fence, it is the duty of the Court clearly and distinctly to instruct the Jury as to the law, defining the several grades of homicide, and then leave the Jury to find from the evidence, of what particular grade the defendant is guilty. As it respects the charge of the Court in regard to a reasonable doubt, we find no error; that charge was a substantial compliance with the law, as we understand it.
Let the judgment of the Court below be reversed, and a new trial granted.