Lumpkin, Justice.
1. As a general rule, upon the trial of a murder case, evidence of threats previously made by the deceased against the accused, but not communicated to the latter, is inadmissible; but this rule is by no means invariable. "When the evidence leaves it doubtful as to which of the parties began the mortal combat, and.there is testimony tending to show that the slayer killed his adversary in self-defence, evidence of this character may be- received to show the state of mind or feeling on the part of the deceased, and thus illustrate his conduct and throw light upon his intention and purpose at the time of the fatal rencontre. This is the substance of what was ruled in the ease of Keener v. The State, 18 Ga. 194, so often cited, and now so familiar -to the profession.
In Hoye v. State, 39 Ga. 718, Brown, C. J., while intimating some disapprobation of the ruling in Keener’s case, states that the court expressly declined to overrule that decision; and in Peterson v. State, 50 Ga. 142, McCay, J., recognizes the propriety of admitting the uncommunicated threats in the Keener case, although he says the court does not feel authorized to go any further in that direction. In Vann v. State, 83 Ga. 44, this court held that evidence as to threats made by the deceased and not communicated to the accused, was properly rejected. Justice Simmons, who delivered the opinion, does not comment upon the facts of the case in connection with this ruling, but merely cites the cases [798]*798of Hoye and Peterson, supra, and also, Lingo v. State, 29 Ga. 470. An examination of the facts of the Vann case will show, however, that Vann was the aggressor from the very beginning of the difficulty which resulted in the death of White, the man he murdered, and that the deceased was shot down and killed when he was actually walking away from the slayer and making no attempt of any kind whatever to injure him; and in each of the cases there cited on this question, it will be seen there was no overt act or attempted violence on the part of the deceased towards the accused. These cases, therefore, present no obstacle to holding that uncommunicated threats may be properly received in cases of an entirely different character, such as the one now under consideration.
This subject was also dealt with by Chief Justice Bleckley in Vaughn v. State, 88 Ga. 731, where a previous uncommunicated threat was held inadmissible, because the evidence was positive that the accused fired the first shot, and was not contradicted otherwise than by his own statement, and there was no evidence that the deceased was armed. See authorities therein cited, upholding the admissibility of uncommunicated threats.
In Trice v. State, 89 Ga. 742, 15 S. E. Rep. 648, the refusal of the court to permit the introduction of uncommunicated threats by the deceased against the life of the accused was held to be no cause for a new trial; but it appeared in that case that the accused, while armed with a deadly weapon, challenged the deceased to fight in the public road, and slew him as he approached with an open knife in his hand, before he had come near enough to put the accused in immediate danger, the latter doing nothing to decline the mortal combat. In such a ease, even if the deceased had previously threatened to kill the accused, little or no additional light could thereby be thrown upon his feelings and conduct, [799]*799other than was already apparent from his acceptance of the challenge given him by the accused.
Mindful of all the previous rulings of this court on this subject, and in view of the other authorities above referred to, we are satisfied that, under the facts which appear in the reporter’s statement, briefly summarized in the first head-note, we have therein ruled the true law upon this question applicable to the case at bar. If the witnesses for the State told the truth, the accused was guilty of murder; if the version of the homicide given by the witnesses for the accused is correct, the accused was justifiable, and guilty of no crime at all. In no view of the case as it appears from the record before us, could the killing-have been voluntary manslaughter. Taking into consideration the conflicting accounts of the transaction, the fact that the deceased had shortly before the fatal rencontre threatened to take the life of the accused, might, under the circumstances, as illustrative of the intent and feeling on the part of the deceased and as explaining his conduct at the time of the killing, materially have aided the jury in reaching a just conclusion. While it is true that evidence of similar threats made by the deceased and communicated to the accused was admitted in evidence, this testimony came from witnesses who were evidently discredited by the jury, and the accused was entitled to have, upon the subject of threats, the evidence of another and different witness, whom the jury might have believed.
We do not wish'to be understood as expressing or intimating any opinion whatever as to the real truth of this case. As it is to be again tried, we wish the jury to pass upon it unembarrassed by any suggestion from us as to the guilt or innocence of the accused. We simply desire that he should be tried according to law, and that all pertinent and legal evidence be admitted upon the next hearing.
[800]*8002. The accused desired the presence of a brother in the court-room during the trial to aid in his defence. As this brother was also a witness in the'case, when'the court ordered the witnesses to be sequestered, counsel •for the accused requested that this one be allowed to remain to assist in the conduct of the trial, and upon objection thereto being made by the solicitor-general, announced that they did not intend to introduce the brother as a witness at all. The court then gave permission for him to remain. Afterwards, in the course of the trial, counsel for the accused desired to introduce him for the purpose of impeaching a witness for the State, but the court refused to allow this to be done, assigning as a reason for such refusal that counsel had stated they would not swear this witness. We think this was error. In the first place, the court might with propriety have allowed the brother to remain without condition to assist in the defence; and though this was not done, we do not think, under the circumstances, that the promise implied in the announcement made by counsel for the accused should have been held absolutely binding. Such things are not matters of contract between court and counsel. The brother of the accused was not disqualified from testifying as a witness because of the fact that he had heard the testimony of other witnesses delivered from the stand. This court has held that even where a witness has been sworn and placed under the rule, the fact that he disobeys the order of the court, remains in the court-room and hears a portion of the testimony, will afford no reason for excluding his testimony; the misconduct of the witness does not operate to disqualify him, but simply renders him amenable to the court for contempt in disobeying its order. Rooks v. State, 65 Ga. 330; Lassiter v. State, 67 Ga. 739; Bone v. State, 86 Ga. 108.
3. When there is a variance between the recitals in a [801]
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Lumpkin, Justice.
1. As a general rule, upon the trial of a murder case, evidence of threats previously made by the deceased against the accused, but not communicated to the latter, is inadmissible; but this rule is by no means invariable. "When the evidence leaves it doubtful as to which of the parties began the mortal combat, and.there is testimony tending to show that the slayer killed his adversary in self-defence, evidence of this character may be- received to show the state of mind or feeling on the part of the deceased, and thus illustrate his conduct and throw light upon his intention and purpose at the time of the fatal rencontre. This is the substance of what was ruled in the ease of Keener v. The State, 18 Ga. 194, so often cited, and now so familiar -to the profession.
In Hoye v. State, 39 Ga. 718, Brown, C. J., while intimating some disapprobation of the ruling in Keener’s case, states that the court expressly declined to overrule that decision; and in Peterson v. State, 50 Ga. 142, McCay, J., recognizes the propriety of admitting the uncommunicated threats in the Keener case, although he says the court does not feel authorized to go any further in that direction. In Vann v. State, 83 Ga. 44, this court held that evidence as to threats made by the deceased and not communicated to the accused, was properly rejected. Justice Simmons, who delivered the opinion, does not comment upon the facts of the case in connection with this ruling, but merely cites the cases [798]*798of Hoye and Peterson, supra, and also, Lingo v. State, 29 Ga. 470. An examination of the facts of the Vann case will show, however, that Vann was the aggressor from the very beginning of the difficulty which resulted in the death of White, the man he murdered, and that the deceased was shot down and killed when he was actually walking away from the slayer and making no attempt of any kind whatever to injure him; and in each of the cases there cited on this question, it will be seen there was no overt act or attempted violence on the part of the deceased towards the accused. These cases, therefore, present no obstacle to holding that uncommunicated threats may be properly received in cases of an entirely different character, such as the one now under consideration.
This subject was also dealt with by Chief Justice Bleckley in Vaughn v. State, 88 Ga. 731, where a previous uncommunicated threat was held inadmissible, because the evidence was positive that the accused fired the first shot, and was not contradicted otherwise than by his own statement, and there was no evidence that the deceased was armed. See authorities therein cited, upholding the admissibility of uncommunicated threats.
In Trice v. State, 89 Ga. 742, 15 S. E. Rep. 648, the refusal of the court to permit the introduction of uncommunicated threats by the deceased against the life of the accused was held to be no cause for a new trial; but it appeared in that case that the accused, while armed with a deadly weapon, challenged the deceased to fight in the public road, and slew him as he approached with an open knife in his hand, before he had come near enough to put the accused in immediate danger, the latter doing nothing to decline the mortal combat. In such a ease, even if the deceased had previously threatened to kill the accused, little or no additional light could thereby be thrown upon his feelings and conduct, [799]*799other than was already apparent from his acceptance of the challenge given him by the accused.
Mindful of all the previous rulings of this court on this subject, and in view of the other authorities above referred to, we are satisfied that, under the facts which appear in the reporter’s statement, briefly summarized in the first head-note, we have therein ruled the true law upon this question applicable to the case at bar. If the witnesses for the State told the truth, the accused was guilty of murder; if the version of the homicide given by the witnesses for the accused is correct, the accused was justifiable, and guilty of no crime at all. In no view of the case as it appears from the record before us, could the killing-have been voluntary manslaughter. Taking into consideration the conflicting accounts of the transaction, the fact that the deceased had shortly before the fatal rencontre threatened to take the life of the accused, might, under the circumstances, as illustrative of the intent and feeling on the part of the deceased and as explaining his conduct at the time of the killing, materially have aided the jury in reaching a just conclusion. While it is true that evidence of similar threats made by the deceased and communicated to the accused was admitted in evidence, this testimony came from witnesses who were evidently discredited by the jury, and the accused was entitled to have, upon the subject of threats, the evidence of another and different witness, whom the jury might have believed.
We do not wish'to be understood as expressing or intimating any opinion whatever as to the real truth of this case. As it is to be again tried, we wish the jury to pass upon it unembarrassed by any suggestion from us as to the guilt or innocence of the accused. We simply desire that he should be tried according to law, and that all pertinent and legal evidence be admitted upon the next hearing.
[800]*8002. The accused desired the presence of a brother in the court-room during the trial to aid in his defence. As this brother was also a witness in the'case, when'the court ordered the witnesses to be sequestered, counsel •for the accused requested that this one be allowed to remain to assist in the conduct of the trial, and upon objection thereto being made by the solicitor-general, announced that they did not intend to introduce the brother as a witness at all. The court then gave permission for him to remain. Afterwards, in the course of the trial, counsel for the accused desired to introduce him for the purpose of impeaching a witness for the State, but the court refused to allow this to be done, assigning as a reason for such refusal that counsel had stated they would not swear this witness. We think this was error. In the first place, the court might with propriety have allowed the brother to remain without condition to assist in the defence; and though this was not done, we do not think, under the circumstances, that the promise implied in the announcement made by counsel for the accused should have been held absolutely binding. Such things are not matters of contract between court and counsel. The brother of the accused was not disqualified from testifying as a witness because of the fact that he had heard the testimony of other witnesses delivered from the stand. This court has held that even where a witness has been sworn and placed under the rule, the fact that he disobeys the order of the court, remains in the court-room and hears a portion of the testimony, will afford no reason for excluding his testimony; the misconduct of the witness does not operate to disqualify him, but simply renders him amenable to the court for contempt in disobeying its order. Rooks v. State, 65 Ga. 330; Lassiter v. State, 67 Ga. 739; Bone v. State, 86 Ga. 108.
3. When there is a variance between the recitals in a [801]*801bill of exceptions and the transcript of the record, the latter must prevail. Dismuke v. Trammell, 64 Ga. 428. In the present case, the bill of exceptions, after setting forth what purports to be a copy of the motion for a new trial containing eight grounds, specifies as material to a clear understanding of the errors complained of, the motion itself. In the transcript of the record, the motion appears to contain only four grounds, numbered, respectively, “ 1st,” “ 2d,” “ 8d,” and' “ 4th.” The names of counsel for movant are signed under the fourth ground; and immediately below, is an acknowledgment of service by the solicitor-general, and the approval of the grounds of the motion by the presiding judge. In view of these facts, this court has no authentic information that the motion contained any additional grounds, and the four remaining alleged grounds are not properly before us for consideration and review. Although the judge signed the usual certificate to the bill of exceptions, and therefore certified that it was true, this does not amount to a verification of the truth and correctness of the grounds of the motion for a new trial, the motion itself being specified as material. In fact, it is expressly stated in the bill of exceptions that the judge declined to approve two of them, and there is no averment that he did or did not approve the other two. Be this as it may, it is not the office of the bill of exceptions to verify the record specified as material and ordered to be sent up. On the contrary, it is the duty of the clerk to make out the transcript and certify to its correctness. Counsel for the plaintiff in error did not themselves rely upon their own statements in the bill of exceptions as to what the motion for a new trial contained, but specified, and requested the court to order sent up, a transcript of the motion itself as it appeared of record. This order the clerk apparently obeyed, and we can only consider and pass upon the motion as cer[802]*802tified by him, as we have done. The rulings we have made dispose of the entire case, as the only error assigned in the bill of exceptions is the refusal of the court to sustain the motion for a new trial, and we have passed upon all the grounds of the motion as it appears in the transcript of the record. Judgment reversed.