Atkinson, J.
1. The judge omitted to charge the law of voluntary manslaughter applicable to a case where the homicide occurs as a result of mutual combat between the deceased and the accused, and excluded that theory from consideration of the jury by the language used in charging generally the law of voluntary manslaughter. If there was evidence that the homicide occurred as a result of a mutual combat between the defendant and the deceased, arising upon a sudden quarrel, it would have been the duty of the judge to instruct the jury upon that phase of the case, and erroneous to so instruct the jury as to eliminate that view of the case from the consideration of the jury. Waller v. State, 100 Ga. 320 (28 S. E. 77); Butt v. State, 150 Ga. 302 (2) (103 S. E. 466), and cit. The controlling question is whether the evidence was sufficient to show mutual combat between the parties at the time of the homicide. In Matthews v. State, 136 Ga. 125 (70 S. E. 1110), it was said: “The great weight of the evidence introduced by the State, if credible, tended to show that the accused was guilty of murder; the statement of the accused, who introduced no evidence, made to the jury, tended, if worthy of credit, to show that the homicide was justifiable; the jury could have found from some of the evidence for the State, considered in connection with a portion of the statement of the accused to the jury, that the accused and the deceased, while engaged in an angry altercation, both drew weapons, the former a pistol, the latter a knife, and each willing and intending to fight, in hot blood and without malice, endeavored to use his weapon on the other, and that the deceased was killed in such rencounter. It follows, therefore, that the court erred in not [416] defining the offense of voluntary manslaughter, and in not instructing the jury as to the law of that grade of' homicide applicable to mutual combat, as presented by a timely written request on the part of the accused.” In Findley v. State, 125 Ga. 579 (54 S. E. 106), the facts relating to mutual combat were stated as follows: “ The accused went to a house on the place of the deceased and caught hip (the defendant’s) son, a bo3r about fifteen years old, who was there, by the collar and told him to come on home, and asked him why he hadn’t been home. The deceased told the accused that he had hired the boy and he did not ‘ reckon ’ the latter would go unless the accused got him by law. The accused said he creckoned’ he would, and that the law didn’t have anything to do with his son, that he thought he had a right to carry him. The deceased replied that the accused would have to go to law before he could get the boy. He struck the accused with his fist. A person who was present advised the accused to turn the boy loose. The accused said, ‘I am going on home. I am not going to have any fuss on your side.’ The deceased replied that he had better go, and the accused said, c I am going.’ The deceased struck him again, and he went on. The deceased acted as if he were going to get a rock from the ground, but the witness caught hold of him and advised him not to do it. The accused told the deceased that if he (the deceased) would come out into the road he (the accused) would kill him. The deceased asked a person near by to lend him a ’gun, but he did not get it. The accused said, 11 If you come out here in the road I will kill you.’' A witness who narrated these facts then added, ‘ And the last word I heard Mr. Bradshaw (the deceased) say was, ‘ I am not going to’; and-about that time the pistol began to shoot.’ When the deceased made this statementf he had not got to the road.’ In another part of his testimony the witness said that it was not more than two or three minutes from the time the deceased struck the accused the second time until the latter commenced shooting. ‘Immediately after Mr. Bradshaw said, ‘I am not coming there,’ the shooting began. When the accused made the statement as to the deceased coming out in the road, the witness supposed he meant the c big road,’ The deceased did not have to go out into that road to reach his house. The accused did have to get into it to reach his house. The witness also thought that the accused and the deceased were both in the road leading from [417] the house of the deceased to the public road. The accused shot once, then waited a second, then shot four or five times. He then left. Later in the night he returned to the pla.ce where the deceased was lying, but not then dead. A witness heard the deceased say, ‘ There is no need, of that, Hnele Eli.’ The accused answered, ‘I thought you were dead. You haven’t treated me right.’ The deceased was on the edge of the public road when he was killed. At another time the same witness said that the deceased was in the public road when he was killed. He was going towards the defendant’s house. In describing the wounds found upon him, the witness said, ‘I saw two wounds in the side, one in the stomach, and some kind of scar or shot on the head. His face looked like it was scratched. His forehead looked like he had been struck with something, may be a rock.’ On re-direct examination the witness said that when the accused said, ‘ If you come out in the road, I will kill you,’ the deceased said, ‘ That is all right; you can kill me if you want to;’ and the accused went on. When he had gone a short distance he said, ‘ Don’t come out in the road on me. If you do, I will kill you.’ The witness added, ‘About that time Mr. Bradshaw got about even with my brothers.’ ” It was held that “Hnder the facts of this case the court erred in not giving in charge the law of mutual combat, or mutual intent to fight.” In the course of the opinion it was said: “The evidence in this case involved the question of whether or not there was such a mutual combat at the time of the homicide as to reduce the killing from murder to manslaughter. The court omitted entirely any reference to that subject, though charging generally on the subject of manslaughter. In Ray v. State, 15 Ga. 223, it was said: ‘ Gur law requires that there should be some assault, by the person killed, upon the person killing; but evidence of such assault may be found in a mutual. intention to fight, and in the fact of an approach by the decedent to the prisoner, in furtherance of this design, when it was not necessary for him to do so in self-defense.’ Mutual blows are not alwaj^s necessary to make mutual combat. Tate v. State, 46 Ga. 157; Gresham v. Equitable Ins. Co., 87 Ga. 497. See also McMillan v. State, 35 Ga. 60; Trice v. State, 89 Ga. 742; Gann v. State, 30 Ga. 67; 7 Michie’s Dig. Ga. Rep. 76-77; 2 Roscoe’s Cr. Ev. 724.”
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Atkinson, J.
1. The judge omitted to charge the law of voluntary manslaughter applicable to a case where the homicide occurs as a result of mutual combat between the deceased and the accused, and excluded that theory from consideration of the jury by the language used in charging generally the law of voluntary manslaughter. If there was evidence that the homicide occurred as a result of a mutual combat between the defendant and the deceased, arising upon a sudden quarrel, it would have been the duty of the judge to instruct the jury upon that phase of the case, and erroneous to so instruct the jury as to eliminate that view of the case from the consideration of the jury. Waller v. State, 100 Ga. 320 (28 S. E. 77); Butt v. State, 150 Ga. 302 (2) (103 S. E. 466), and cit. The controlling question is whether the evidence was sufficient to show mutual combat between the parties at the time of the homicide. In Matthews v. State, 136 Ga. 125 (70 S. E. 1110), it was said: “The great weight of the evidence introduced by the State, if credible, tended to show that the accused was guilty of murder; the statement of the accused, who introduced no evidence, made to the jury, tended, if worthy of credit, to show that the homicide was justifiable; the jury could have found from some of the evidence for the State, considered in connection with a portion of the statement of the accused to the jury, that the accused and the deceased, while engaged in an angry altercation, both drew weapons, the former a pistol, the latter a knife, and each willing and intending to fight, in hot blood and without malice, endeavored to use his weapon on the other, and that the deceased was killed in such rencounter. It follows, therefore, that the court erred in not [416] defining the offense of voluntary manslaughter, and in not instructing the jury as to the law of that grade of' homicide applicable to mutual combat, as presented by a timely written request on the part of the accused.” In Findley v. State, 125 Ga. 579 (54 S. E. 106), the facts relating to mutual combat were stated as follows: “ The accused went to a house on the place of the deceased and caught hip (the defendant’s) son, a bo3r about fifteen years old, who was there, by the collar and told him to come on home, and asked him why he hadn’t been home. The deceased told the accused that he had hired the boy and he did not ‘ reckon ’ the latter would go unless the accused got him by law. The accused said he creckoned’ he would, and that the law didn’t have anything to do with his son, that he thought he had a right to carry him. The deceased replied that the accused would have to go to law before he could get the boy. He struck the accused with his fist. A person who was present advised the accused to turn the boy loose. The accused said, ‘I am going on home. I am not going to have any fuss on your side.’ The deceased replied that he had better go, and the accused said, c I am going.’ The deceased struck him again, and he went on. The deceased acted as if he were going to get a rock from the ground, but the witness caught hold of him and advised him not to do it. The accused told the deceased that if he (the deceased) would come out into the road he (the accused) would kill him. The deceased asked a person near by to lend him a ’gun, but he did not get it. The accused said, 11 If you come out here in the road I will kill you.’' A witness who narrated these facts then added, ‘ And the last word I heard Mr. Bradshaw (the deceased) say was, ‘ I am not going to’; and-about that time the pistol began to shoot.’ When the deceased made this statementf he had not got to the road.’ In another part of his testimony the witness said that it was not more than two or three minutes from the time the deceased struck the accused the second time until the latter commenced shooting. ‘Immediately after Mr. Bradshaw said, ‘I am not coming there,’ the shooting began. When the accused made the statement as to the deceased coming out in the road, the witness supposed he meant the c big road,’ The deceased did not have to go out into that road to reach his house. The accused did have to get into it to reach his house. The witness also thought that the accused and the deceased were both in the road leading from [417] the house of the deceased to the public road. The accused shot once, then waited a second, then shot four or five times. He then left. Later in the night he returned to the pla.ce where the deceased was lying, but not then dead. A witness heard the deceased say, ‘ There is no need, of that, Hnele Eli.’ The accused answered, ‘I thought you were dead. You haven’t treated me right.’ The deceased was on the edge of the public road when he was killed. At another time the same witness said that the deceased was in the public road when he was killed. He was going towards the defendant’s house. In describing the wounds found upon him, the witness said, ‘I saw two wounds in the side, one in the stomach, and some kind of scar or shot on the head. His face looked like it was scratched. His forehead looked like he had been struck with something, may be a rock.’ On re-direct examination the witness said that when the accused said, ‘ If you come out in the road, I will kill you,’ the deceased said, ‘ That is all right; you can kill me if you want to;’ and the accused went on. When he had gone a short distance he said, ‘ Don’t come out in the road on me. If you do, I will kill you.’ The witness added, ‘About that time Mr. Bradshaw got about even with my brothers.’ ” It was held that “Hnder the facts of this case the court erred in not giving in charge the law of mutual combat, or mutual intent to fight.” In the course of the opinion it was said: “The evidence in this case involved the question of whether or not there was such a mutual combat at the time of the homicide as to reduce the killing from murder to manslaughter. The court omitted entirely any reference to that subject, though charging generally on the subject of manslaughter. In Ray v. State, 15 Ga. 223, it was said: ‘ Gur law requires that there should be some assault, by the person killed, upon the person killing; but evidence of such assault may be found in a mutual. intention to fight, and in the fact of an approach by the decedent to the prisoner, in furtherance of this design, when it was not necessary for him to do so in self-defense.’ Mutual blows are not alwaj^s necessary to make mutual combat. Tate v. State, 46 Ga. 157; Gresham v. Equitable Ins. Co., 87 Ga. 497. See also McMillan v. State, 35 Ga. 60; Trice v. State, 89 Ga. 742; Gann v. State, 30 Ga. 67; 7 Michie’s Dig. Ga. Rep. 76-77; 2 Roscoe’s Cr. Ev. 724.”
In Bailey v. State, 148 Ga. 401 (96 S. E. 862), one question [418] was whether the evidence was sufficient to show mutual combat between the parties at the time of the homicide, and it was held that the evidence was sufficient. The following quotation from the opinion will suffice to show the facts of the case and the decision of the court: “ The accused and deceased were standing on the edge of the sidewalk, quarreling. Deceased struck the accused with his fist, and both backed off into the street. While backing, the accused drew from his pocket his knife and opened it with one hand, and cut the deceased, inflicting the mortal wound, and immediately fled. From this evidence there might be found the mutual intention to fight. Such intention upon the part of the deceased would be manifested by quarreling and striking the accused with his fist, and a like intention upon the part of the accused would be manifested by quarreling and deliberately drawing his knife and dealing the deadly stab upon provocation consisting of the blow. The question under the conflicting evidence was for the jury, but the evidence was sufficient to authorize its submission.”
In the light of what has been said, how stands the case for decision?' The jury would have been authorized to find that there was a i fight between the deceased and the accused with deadly weapons, which resulted in the death of the former and the severe wounding of the latter; that the accused in a boisterous manner addressed profane and vulgar epithets to the deceased, within the hearing of the wife and mother-in-law of the deceased and other .members of the family; that the deceased ordered the accused to desist from his boisterous conduct, and the latter replied by saying it was a public place, and asking what deceased had to do with it; that the deceased replied that he would show him, and started in the store where a baseball bat was known to be, and was followed by the accused; that deceased seized the baseball bat and the fight ensued, the deceased using the baseball bat and the defendant using his pistol. The evidence was conflicting as to the details of the rencounter, but it is difficult to describe accurately the details of such an occurrence; and the jury is not required to take the evidence from one side or the other,- but it is the duty of the jury to consider the evidence as a whole in determining the truth of the case. In the circumstances the jury was authorized to find that there was a mutual combat between the accused and the deceased, [419] •which resulted iu the death of the latter; and the trial judge erred in not charging the law of voluntary manslaughter applicable to a homicide committed in the course of mutual, combat between the parties.
2. As a new trial will be granted on other grounds, it is unnecessary to deal with the ground of the motion for new trial relating to the alleged newly discovered evidence, or with the general grounds which complain that the evidence was insufficient to support the verdict.
Judgment reversed.
All the Justices concur, except Gilbert and Sines, JJ., dissenting.