Fish, P. J.
1. The law of voluntary manslaughter was clearly applicable to some phases of the case. There was evidence from which the jury could find that there was a sudden altercation between the accussd and the deceased, during which each caught the other by the collar, it not appearing who caught the other [116]*116first; that when separated both began at once to unbutton their coats for the purpose of drawing weapons; that both drew weapons about the same time, the accused a pistol and the deceased a policeman’s club; that the accused shot the deceased immediately after drawing the pistol; that each had assaulted the other ; that both were in a sudden heat of passion; and there was a mutual intention to fight on the spot. If such were the facts, it needs no argument or citation of authority to sustain the proposition that a charge on the law of voluntary manslaughter was appropriate. We are also of the opinion that, in view of the evidence and the statement of the accused, the charge complained of in the 9th ground of the motion for a new trial was applicable. The portion of the charge excepted to was: “ It should be voluntary manslaughter if you are satisfied that the facts and circumstances surrounding the accused were such as to excite the fears of a reasonable man' that some bodily harm less than a felony was imminent or impending.’’ The accused shot just as the deceased had drawn a policeman’s club from his pocket and had it in his hand. What his purpose was in drawing it and what he intended to do with it or was in the act of doing with it was for the jury to decide. It was- also for them to judge of the character of the club as- a weapon, whether deadly or not; and, if the deceased was about to assault the accused, the character pf the assault, whether less than a felony or not. The jury, considering all the circumstances of the case, might have believed that the deceased, after the separation, still intended to fight, and when shot was in the act of making an assault and that such assault was not felonious.
2. Did the court err in admitting in evidence what the deceased said as he fell after being shot, viz., “ O, Lord, my poor wife and children ? ” The contention for the State is that the words were admissible as part of the res gestae and as tending to show, the state of mind of the deceased at the time he was shot, and that, as the accused claimed that the deceased was the aggressor, that he was actuated by malice toward the accused and intended to do him harm, the exclamation of the deceased, made immediately after he was shot and as he fell to his knees, and before a change of mind was likely to have resulted, indicated that he had no malice in his heart, but was actuated solely by [117]*117motives of self-defense in what he was doing when he was shot. On the other hand, the contention for the accused is, that the words did not tend to illustrate any issue in the ease, that they shed no light on the frame of mind of the deceased, that a violent man might force an issue, show a murderous purpose, and when shot down might, under a revulsion, which may come in the twinkling of an eye, refer in pathetic terms to his. wife and children, bub that such a reference could not aid the jury in arriving at the truth of the case, and that the words used by the deceased in the present case did not tend to show that when shot it was not his purpose to kill the accused. “ Declarations accompanying an act, or so nearly connected therewith .in time as to be free from all suspicion of device or afterthought, are admissible in evidence as part of the res gestae.” Penal Code, §998. “Res gestae are the circumstances, acts, or declarations which grow out of the main fact, 'are contemporaneous with it, and serve to illustrate its character.” “An indispensable characteristic of declarations'is that they must be made at the time of the act done which they are supposed to characterize, and further they must be calculated to unfold the nature and quality of the facts they are intended to explain, and so to harmonize with them as obviously to constitute one transaction.” Carter v. Buchannon, 3 Ga. 513; Mitchum v. State, 11 Ga. 615, 623. “Acts are pertinent if they are done pending the enterprise, and whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard, or to evince essential motive or purpose in reference to it; and declarations are pertinent if they are uttered contemporaneously with pertinent acts, and serve to account for, qualify, or explain them,-and are apparently natural and spontaneous.” Gox v. State, 64 Ga. 374 (7). There are many other decisions of this court to the same effect. In Travelers Ins. Co. v. Sheppard, 85 Ga. 751, it was said that the code section above quoted introduces no new rule, and reference is approvingly made to the “luminous and able opinion of Judge Nisbet in Mitchum v. State, 11 Ga. 615.” “When an act is done, to which it'is necessary to ascribe a motive, it is always considered that what is said at the time, from which the motive may be collected,gis part of the res geste.” Monroe v. State, 5 Ga. 85. We are not prepared to hold ' that the sayings or exclamations of the deceased, made, immediately after he was shot, did not tend to show the state of [118]*118his mind towards the accused immediately prior thereto, or that they were not calculated to illustrate the character of his acts just before he was shot. We therefore rule that the court did not err in admitting them. At most we think it could only be said that their admissibility was doubtful, and it has long been the rule in this State, when the admissibility of evidence is ] doubtful, to admit it and leave its weight and effect to be de-l termined by the jury. Mitchell v. State, 71 Ga. 128; Augusta Factory v. Barnes, 72 Ga. 217; Dalton v. Drake, 75 Ga. 115; Central R. Co. v. Smith, 76 Ga. 209; Gilmer v. Atlanta, 77 Ga. 688; Thompson v. Thompson, Id. 700; Savannah R. Co. v. Flannagan, 82 Ga. 579; Western R. Co. v. Young, 83 Ga. 512; Central R. Co. v. Bernstein, 113 Ga. 175. If the evidence were properly admitted, then of course counsel for the State had the right to make legitimate comments on it in his argument to the jury. In the 5th ground of the motion for a new trial, where complaint was made because the court allowed the solicitor-general to comment on the evidence we have been considering, it does not appear but that his comments were entirely legitimate.
3.
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Fish, P. J.
1. The law of voluntary manslaughter was clearly applicable to some phases of the case. There was evidence from which the jury could find that there was a sudden altercation between the accussd and the deceased, during which each caught the other by the collar, it not appearing who caught the other [116]*116first; that when separated both began at once to unbutton their coats for the purpose of drawing weapons; that both drew weapons about the same time, the accused a pistol and the deceased a policeman’s club; that the accused shot the deceased immediately after drawing the pistol; that each had assaulted the other ; that both were in a sudden heat of passion; and there was a mutual intention to fight on the spot. If such were the facts, it needs no argument or citation of authority to sustain the proposition that a charge on the law of voluntary manslaughter was appropriate. We are also of the opinion that, in view of the evidence and the statement of the accused, the charge complained of in the 9th ground of the motion for a new trial was applicable. The portion of the charge excepted to was: “ It should be voluntary manslaughter if you are satisfied that the facts and circumstances surrounding the accused were such as to excite the fears of a reasonable man' that some bodily harm less than a felony was imminent or impending.’’ The accused shot just as the deceased had drawn a policeman’s club from his pocket and had it in his hand. What his purpose was in drawing it and what he intended to do with it or was in the act of doing with it was for the jury to decide. It was- also for them to judge of the character of the club as- a weapon, whether deadly or not; and, if the deceased was about to assault the accused, the character pf the assault, whether less than a felony or not. The jury, considering all the circumstances of the case, might have believed that the deceased, after the separation, still intended to fight, and when shot was in the act of making an assault and that such assault was not felonious.
2. Did the court err in admitting in evidence what the deceased said as he fell after being shot, viz., “ O, Lord, my poor wife and children ? ” The contention for the State is that the words were admissible as part of the res gestae and as tending to show, the state of mind of the deceased at the time he was shot, and that, as the accused claimed that the deceased was the aggressor, that he was actuated by malice toward the accused and intended to do him harm, the exclamation of the deceased, made immediately after he was shot and as he fell to his knees, and before a change of mind was likely to have resulted, indicated that he had no malice in his heart, but was actuated solely by [117]*117motives of self-defense in what he was doing when he was shot. On the other hand, the contention for the accused is, that the words did not tend to illustrate any issue in the ease, that they shed no light on the frame of mind of the deceased, that a violent man might force an issue, show a murderous purpose, and when shot down might, under a revulsion, which may come in the twinkling of an eye, refer in pathetic terms to his. wife and children, bub that such a reference could not aid the jury in arriving at the truth of the case, and that the words used by the deceased in the present case did not tend to show that when shot it was not his purpose to kill the accused. “ Declarations accompanying an act, or so nearly connected therewith .in time as to be free from all suspicion of device or afterthought, are admissible in evidence as part of the res gestae.” Penal Code, §998. “Res gestae are the circumstances, acts, or declarations which grow out of the main fact, 'are contemporaneous with it, and serve to illustrate its character.” “An indispensable characteristic of declarations'is that they must be made at the time of the act done which they are supposed to characterize, and further they must be calculated to unfold the nature and quality of the facts they are intended to explain, and so to harmonize with them as obviously to constitute one transaction.” Carter v. Buchannon, 3 Ga. 513; Mitchum v. State, 11 Ga. 615, 623. “Acts are pertinent if they are done pending the enterprise, and whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard, or to evince essential motive or purpose in reference to it; and declarations are pertinent if they are uttered contemporaneously with pertinent acts, and serve to account for, qualify, or explain them,-and are apparently natural and spontaneous.” Gox v. State, 64 Ga. 374 (7). There are many other decisions of this court to the same effect. In Travelers Ins. Co. v. Sheppard, 85 Ga. 751, it was said that the code section above quoted introduces no new rule, and reference is approvingly made to the “luminous and able opinion of Judge Nisbet in Mitchum v. State, 11 Ga. 615.” “When an act is done, to which it'is necessary to ascribe a motive, it is always considered that what is said at the time, from which the motive may be collected,gis part of the res geste.” Monroe v. State, 5 Ga. 85. We are not prepared to hold ' that the sayings or exclamations of the deceased, made, immediately after he was shot, did not tend to show the state of [118]*118his mind towards the accused immediately prior thereto, or that they were not calculated to illustrate the character of his acts just before he was shot. We therefore rule that the court did not err in admitting them. At most we think it could only be said that their admissibility was doubtful, and it has long been the rule in this State, when the admissibility of evidence is ] doubtful, to admit it and leave its weight and effect to be de-l termined by the jury. Mitchell v. State, 71 Ga. 128; Augusta Factory v. Barnes, 72 Ga. 217; Dalton v. Drake, 75 Ga. 115; Central R. Co. v. Smith, 76 Ga. 209; Gilmer v. Atlanta, 77 Ga. 688; Thompson v. Thompson, Id. 700; Savannah R. Co. v. Flannagan, 82 Ga. 579; Western R. Co. v. Young, 83 Ga. 512; Central R. Co. v. Bernstein, 113 Ga. 175. If the evidence were properly admitted, then of course counsel for the State had the right to make legitimate comments on it in his argument to the jury. In the 5th ground of the motion for a new trial, where complaint was made because the court allowed the solicitor-general to comment on the evidence we have been considering, it does not appear but that his comments were entirely legitimate.
3. It was not error to refuse to grant a mistrial on the ground that the solicitor-general, in arguing the case to the jury, stated that “ the deceased had left four fatherless children.” It is stated in the motion (6th ground) that the “ motion for a mistrial was made after the solicitor-general had, for the fourth time, mentioned this as a fact and as part of an earnest appeal to the jury.” What the appeal was does not appear from the motion; so we can only rule upon the question made, that is, whether the court erred in refusing to grant a mistrial because of the statement made by the solicitor-general, that “the deceased left four fatherless children.” It appears from the motion for new trial that when the motion for a mistrial was made the solicitor-general withdrew the objectionable remark, and that the court instructed the jury not to consider what had been said about four fatherless children. Whatever influence, harmful to the accused, the remark of the solicitor-general was calculated to have on the minds of the jury was, we think, removed by tlie positive instruction by the court to the jury ob*the subject.
4. The exception to the charge set out in the 8th ground of the motion was not well taken. Considering both the evidence and [119]*119the statement of the accused, there was room for the theory that the accused was the aggressor and that the deceased, in drawing his club, was only intending to resist further aggressions. Granting, however, that there was nothing either in the evidence or the statement to authorize the charge, it would not be cause for a new trial, as the court instructed the jury that if they believed such theory to be true, then the drawing of the club by the deceased would not be “a sufficient provocation for the homicide.” The court was then dealing with the law of murder; and as the verdict was for voluntary manslaughter, this instruction on the law of murder, if erroneous, could not have been harmful to' the accused, and was not cause for a new trial.
5. The alleged newly discovered evidence was not cause for a new trial. It appears from the affidavit of counsel for the accused that three of the six witnesses who made affidavits as to the newly discovered evidence were present at the trial, and that counsel for the accused then knew what one of them would testify, and had heard that the testimony of the other two present would be favorable to the accused. It further appears that the other three witnesses, of whose testimony neither the accused nor his counsel had any intimation prior to the trial, would testify to substantially the same facts as the three witnesses present at the trial, and that the testimony of all six witnesses was practically, the same. In Norman v. Goode, 121 Ga. 449, it was held: “A party is bound, at-his'peril, to submit on the trial all competent evidence in his favor he has at hand. If he had knowledge of the fact, and the same could have been proved at the trial by evidence other than that newly discovered, a new trial will not be granted, unless the movant can satisfactorily explain why he did not attempt to use the evidence then at hand.” No satisfactory reason was given in the present case why the accused did not attempt to use the evidence of the three witnesses present at the trial. It is due to counsel who appeared for the accused before this court to say that he candidly stated in his argument that in his opinion the alleged newly discovered evidence was not of itself sufficient cause for the grant of a new trial.
6. The evidence authorized the verdict, and the court did not abuse its discretion in refusing a new trial.
Judgment affirmed.
All the Justices concur.