Crawford, Justice.
The plaintiff in error was convicted in the court below of the crime of murder; he moved for a new trial, which was refused, and he excepted.
The errors complained of are numerous.and important, and will be considered in the order in which they occur in the motion for a new trial.
1. Upon arraignment the defendant filed his plea of misnomer, in which it was alleged that his name was not, nor had it at any time theretofore been, “Doc.” Wilson, as charged in the bill of indictment, but was, and had always been, Harrison L. Wilson, and none other.
This plea was stricken on demurrer, and the judgment of the court in striking the plea constitutes the first assignment of error. The insufficiency of the plea consisted in the fact that it did not allege that the defendant had never been known or called by any other name than that of Harrison L. Wilson.
Without entering into any discussion of the question as to whether or not this would have been a good plea under the earlier English rulings, it certainly under our practice was fatally defective. That his real name had always been Harrison L. Wilson, and none other, was not at all inconsistent with the fact that he might have always been known and called by the name of “ Doc.” Wilson.
[235] A person described by the name by which he is generally or commonly known, is good. 65 Ga., 150; 1 Bish. Crim. Proc., 686, and cases cited.
In the case of Jordan vs. The State, 60 Ga., 656, where the defendant filed her plea of misnomer, it was distinctly alleged that her name was not' Lizzie Jordan, but Eliza Jordan, and that she had never been known or called by any other name. The omission by the defendant in the case before us to make the same allegation, no doubt originated .in the fact that he could not verify it, and the wisdom of the rule is thereby illustrated. The plea was properly stricken.
2. The next assignment of error was, because the court, upon the evidence offered, overruled the second plea in abatement. It alleged that at the time the present indictment was found by the grand jury, amd at the time of the trial, there was pending in that court an indictment accusing the defendant with the same offence, and for the same transaction, and that before this indictment was submitted and returned by them as true, no order of nolle prosequi had been taken and entered on the minutes of the court. The proof upon which the plaintiff in error relied to support this plea was, that the minutes of the court were kept by the clerk in separate books ; that is to say, he kept the minutes of the proceedings in all civil causes in one book and of all the criminal causes in another. And furthermore, that these minutes had not been signed up by the judge before the second indictment had been returned into court.
We are not prepared to hold that the judge erred in overruling the defendant’s plea upon the proofs submitted.
The law makes it the duty of the clerk to attend all sessions of the superior courts, and to keep fair and regular minutes of their proceedings; but it is not declared that they shall be kept in one book. Whilst we think the better and more general practice is to keep them in [236] ■one book, yet that they are kept in two does not destroy their verity or legal effect.
On the second branch of the objection to them, that they had not been signed up by the judge when examined by counsel, it would be sufficient to say that the judge found against the plea on the proof, as he construed it. But we may add that, whilst the law requires the minutes to be signed by the judge, still it is specially provided that if not signed, they are nevertheless valid unless repudiated by the court. Code, §208.
Here, so far from their being repudiated, they were approved and signed by the judge, and upon them appears the order for the nolle prosequi of the first bill of indictment. ' So that the judge committed no error in his ruling on this plea.
• 3. Because the court overruled and denied the defendant’s motion to quash the indictment regularly made in writing upon arraignment, and before plea pleaded, on the ground that the jury commissioners selected no persons of color or African race to serve as grand jurors, but, on the contrary, excluded all colored persons and persons of African race, because of their race and color, from those selected to serve and be drawn as grand jurors for the said county of Bibb. And by reason of such exclusion from the grand juries, though otherwise qualified to serve, the defendant, in the finding of the indictment, had been denied equal protection of the laws and proceedings in the state of Georgia for the security of his-person as enjoyed by white persons, and in violation of and contrary to the laws of the United States as contained in section 641 of the revised statutes, and in the fourteenth and fifteenth amendments to the constitution of the United States, and the civil rights acts of congress, and the statutes and constitution of the state of Georgia. Upon this plea issue was joined, and by agreement of counsel submitted to the judge for trial. After an examination of witnesses, which was full, thor[237] ough and exhaustive, the judge found against the defendant’s plea, and this finding is complained of as illegal.
By the constitution of the state of Georgia, it is declared that “ the laws of general operation in this state are, first, as the.supreme law, the constitution of the United States, and the laws of the United States, passed in pursuance thereof.” Recognizing, then, as we do, the supremacy of the constitution and laws of the United States, passed in pursuance thereof, no violation of the legal or constitutional rights of any person has ever been contemplated or desired by either branch of the state government of Georgia. Hence it will be seen that by article VI, section XVIII, paragraph II, of our state constitution, it is declared that the general assembly shall provide by law for the selection of the most experienced, intelligent and upright men to servé as grand jurors, and intelligent and upright men to serve as traverse jurors.” Thus fixing in the organic law the standard of qualification upon the experience, intelligence and uprightness of the men, without reference to race, color or previous condition of servitude. In obedience to this constitutional requirement, the general assembly enacted that a board of commissioners, composed of six discreet persons, should be appointed by the judge of the superior court, who should select from the tax books of each county the names of upright and intelligent persons to serve as jurors, and then to select from these a sufficient number^ not exceeding two-fifths, of the most experienced, intelligent and upright men to serve as grand jurors, and that the remainder should constitute the traverse jurors. In the law, therefore, as in the constitution, it will be seen that no distinction resting on race or color is made ; and, not only so, but to insure a proper recognition of the rights of all qualified persons, it is further provided that before the commissioners shall enter upon this duty, they are required to take an oath before the judge of the superior court to impartially discharge their duty in selecting [238] jurors, without any regard to race, color or previous condition of servitude, in accordance with the constitution of the state. And still further to carry out this constitutional provision, it is made a felony, punishable by penitentiary imprisonment, for any commissioner to violate the law in this regard.
Thus guarded and protected, in the hands of the county commissioners is lodged the power of determining who are the most experienced, intelligent and upright men, and to select them as the proper persons to serve as jurors. They are made the judges of the qualifications and fitness of the men, whose names appear upon the tax books of the county, to be placed on the jury lists thereof, and thpugh others should differ from them, in respect to many who might be chosen or rejected, still the law makes their selections the only legally qualified jurors. Thomas vs. The State. 67 Ga., 460.
On the trial of defendant’s plea in this case, the testimony submitted to the court shows that white men, as well as black, were excluded from the lists, because, in the opinion of the commissioners, they did not meet the requirements of the law. And beyond this, the evidence of the commissioners themselves was positive and distinct, that the allegations of the plea were untrue, and the judge so found. It being the uniform rule of this court, that where the testimony is sufficient to support a fin.ding by the jury, or the judge, where facts are left to him to decide, that it will not be disturbed, must be held the same in this as in all other cases.
4. The next ground of the motion for a new trial is made upon a challenge to the array, when the first panel of forty-eight traverse jurors were put on the prisoner, for the same reasons .substantially as set forth in the plea in abatement touching the selection of the grand jurors, which challenge was overruled by the court, and the same is now assigned as error.
[239] If the finding of the-judge on the plea in abatement was right on the evidence, as was held by him, and herein affirmed by this court, then the challenge to the array was properly overruled. And the more especially so, as it had been shown on the trial that there were thirteen negro men in-the traverse jury box, whose names were on the tax books, and that many others were, in the opinion of witnesses qualified to serve as jurors, but whose names did not appear on the tax books, and from which the jury lists are made up.
5. The fifth ground is the same as the fourth in all respects, except that in the second panel of forty-eight there were two negro jurors, one of whom stood number 46 on the list, and the last juror taken was number 43, whilst' the prisoner stood with nine peremptory challenges in his hands not exhausted, and the state with only three; The judge committed no error in overruling the challenge to the array of the second panel of the traverse jurors.
6. The next assignment of error is, that after twelve of panel number one had been sworn upon voire dire, the clerk proceeded to call the two next on the list, 13 and 14, who were asked' the statutory questions without having been first sworn.
The record shows that the first twelve jurors composing the full panel of 48 were called up and sworn, and after they had been passed on by the state and the accused, the clerk proceeded to call two other jurors, who were asked the statutory questions before the second twelve had been called and sworn ; being discovered, however, almost immediately, the solicitor general proposed to recall the two jurors, swear them and propound the questions; but the counsel for prisoner objected, and upon his objection the judge did not allow the solicitor to recall them.
Thus it appears that the jurors were not recalled and sworn, because of the objection of prisoner’s counsel, and, so far as the record discloses, upon no reason whatever. If it had been shown that too much time had elapsed; [240] that they had passed outside the bar and mingled with the bystanders, or any other reásonable ground of disqualification, then there might have Been some ground of objection. But when the failure to swear the jurors after the omission had occurred, was prevented without any legal reason therefor and almost instantly with the omission, we cannot hold that the judge erred in going on with the call.'
To say that the juror who disqualified himself might have answered differently had he been under oath is hardly sound. One who would stand up and deliberately make a false answer to escape service on the jury, would have sworn it as quickly. As to the other, though a challenge had been exhausted upon him, prisoner’s counsel would not consent to his being recalled and ascertaining whether he might not have disqualified himself, and thereby saved his challenge. This was evidently considered of no moment, as only x I of the 20 peremptory challenges were exhausted in malting up the jury.
7. The next assignment of error will be found in the 9th ground of the motion for a new trial, and consists in the fact that the judge in his charge said to the jury, “ If, on the other hand, the. evidence satisfies your minds that he is guilty, that he has violated the law,-then have the courage so to find, regardless of the consequences to this defendant or any one else.” Said charge not directing the jury, that the evidence should satisfy their minds beyond a reasonable doubt, and because they were directed to find the defendant “ guilty,” if they were satisfied he had violated the law. To disconnect a sentence in the judge’s charge from what precedes and follows it, gives no just conception of its meaning, import or legal effect, and this court cannot consider it, except asdt stands related to the other instructions given to the jury. Thus considered it is not error.
8. Because the court erred in charging the jury as follows: “ He pleads not guilty: he says he did killTinley, [241] but he did it in self-defence, to save his own life, and that is the issue for you to try.” Whilst the judge stated in perhaps too decided a manner the issue, yet he did not misstate it; for the killing of the deceased by the defendant was never denied from the beginning to.the end of the trial, and the burden of the defence was based upon the ground not that the prisoner did not fire the fatal shot, but that he did it in self-defence, and to save his own life. Indeed, the prisoner in his statement said that .when the deceased struck his knife over the counter at him, he “ dropped back, reached my (his) hand over my (his) shoulder, grabbed a revolver that was there and fired. I cocked the revolver just after I grabbed it. When I fired, he threw his hands up to his breast,” etc. He further said that he went in five steps, of the jail gate, and stayed there nearly five minutes to give himself up, as it was his intention to do. This statement, the testimony of Westcott, and the whole line of the defence, did not make it error in the judge to state the issue as he did, that he might instruct the jury on the law applicable to the case.
9. The nth ground of alleged error is without merit, as held by this court too often to need comment. When the killing has been proved, it is presumed to be felonious until the contrary appears either from the testimony offered by the state or the accused.
10. This ground, as 'set out in the 12th of the motion for a new trial, is a long extract from the charge, consisting of more than forty lines of manuscript without specifying any special error therein. But upon examination, as found in the general charge, it will be seen that it was based on the Code and the various rulings of this court from the 2d Ga. to the unreported cases.
11. As to this the 13th of the motion, it is made up of the first sentence, and the last but one of the judge’s charge on the subject of manslaughter, omitting some five intervening ones which explain and make clear the meaning and purport of what he said, and which follows the definition laid down by the Code.
[242] 12. The complaint in the 14th is the failure of the judge to read sections 4332 and 4334 in connection with 4330, 433t and 4333 of the Code. There being no forcible attack, or invasion of the property, or habitation in this case, we do not see the applicability of section 4332 thereto. So far from the-presence of the deceased being an intrusion upon the premises, it was a public place ; one to which all were invited and desired to come; and was as free if not freer to him who stood in front, than to him who stood behind the counter. The house in which this homicide occurred had no connection whatever with the tragedy. It was personal, and personal only ; therefore section 4332 was properly withheld from the jury. Neither was there anything in the evidence to call for the reading of section 4334; the rule of law therein laid down, though wonderfully wise, had no application to this case.
13. Under the 15th ground of defendant’s motion, it is pressed with much force and eloquence, that where one under indictment for murder pleads that the killing was justifiable under the law as declared in sections 4330-1, it is error in the judge to put upon him the burden of the proof required by section 4333, as was done in this case.
The charge of a judge can never be separated into segments, and have each part considered and adjudged as though that were all he had said to the jury; it must be taken in its totality, and squared by the law as a whole.
Looking, therefore, at the part herein complained of, and that also’ complained of in the 19th ground, as given with the entire charge, it will be seen that the rulings of this court have been followed by the judge below in his instructions to the jury on this branch of the case. 57 Ga., 184; 65 Id., 431.
Upon these two grounds we desire to say that there appears no difficulty to our minds in construing the various sections of the Code, declaring what shall be necessary to justify homicide.
Section 4330 provides that one may kill another in self-[243] defence, or in defence of habitation, property or person, against one who manifestly intends or endeavors by violence or surprise to commit a felony on either.
Section 4331 simply provides-that a bare fear shall not be sufficient to justify such killing, and lays down the rule as to what shall be sufficient, etc.
Section 4332 defines what will justify a homicide in defence of habitation, property or person where a felony is attempted -by violence or surprise on either, and concludes with this qualification : “ But it must appear that such killing was absolutely necessary to prevent the attack and invasion, and that a serious injury was intended, or might accrue to the person, property or family of the person killing.”
Section 4333 provides that to make a homicide justifiable upon the ground that it was done in self-defence, it must appear that, the danger was so urgent and pressing at the time of the killing that, in order to' save his own life, the killing of the other was absolutely necessary.
Thus it is clear that the qualifications in either case to justify a homicide must be made to appear as declared in sections 4332 and 4333, as they bear upon self-defence, or defence of habitation, property or person, defined in section 4330.
14. The 16th assignment rests upon the failure of the judge to charge upon the fact that the defendant was in his own place of business and not bound to retreat therefrom. The facts of the case were covered by the charge, and the law applicable thereto given by the judge. If a more explicit charge was desired, or a different principle wanted, the legal mode of obtaining it was by a written request, and unless'that which was given was itself illegal, it will be held sufficient. Besides, as we have said, a saloon where persons are invited to come and drink is a public place, and one who resorts to such a place for such a purpose is at the place for the business contemplated, with equal rights as to the matter'in hand with the vendor for the time being.
[244] 15. The 17th and 18th exceptions are covered by the principles decided and the rules hereinbefore laid down for arriving at the just meaning and scope of the instructions submitted by the judge to the jury.
16. The 19th was disposed of with the 15th in this opinion.
17. There is nothing inconsistent with the law as repeatedly ruled by this court in the 20th and 21st grounds of the motion for a new trial. Nor do we appreciate the second branch of the 21st ground, which characterizes the charge as being partial to the state and calculated to mislead the jury upon the issue in the case. Upon the contrary, it appears to us a clear, fair and impartial charge upon the law of the case when applied to the facts. If the rules of íaw bear heavily on a defendant because of his own acts, he should rest his complaint upon the acts and not upon the law. Its penalties have never found favor with its violators.
18. The 22d ground of this motion for a new trial is, that the judge decided against the motion to quash the indictment without hearing argument from counsel on said motion.
It does not appear from the record that there was any intimation given to the judge on the part of defendant’s counsel that they desired to submit argument on the evidence or law involved. Had they done so, the judge doubtless would have granted any request that they might have made, expressing a wish to be heard before the decision was pronounced. The principles of law were notin dispute; the testimony had been heard at great length by thé judge ; he had that all before him ; argument could not change facts ; and it was a question of fact alone which he was trying; hence we can see no reason why argument was needed, or desired, if indeed it were, but of which the first notice the judge had, so far as disclosed by the record, was this ground in the motion for a new trial.
[245] However all that may be, the real question at last is, was the judgment of the court right? Having held that it was, that ends the question.
19. Complaint is made in the 23rd ground that the judge charged the jury that, in coming to their conclusion as to which witnesses they would give cr.edit, they might take into consideration the manner of the witnesses as they testified, their relationship to the parties, their interest in the case, if they had any, and their bias, if they showed any, when upon the stand. What the error was, is not specified. But it appears that injustice to the judge it would have been fair to have set out the additional instruction he gave them on -this, point, which was that they should take into consideration the position the witnesses occupied at the time of the killing and their opportunities for knowing what they testified about, and give credit to those whom they thought most entitled to it.
20. The objection set out in the 24th ground appears to be that the judge, in charging upon the prisoner’s statement, said to the jury, that it was not under oath, nor was he subject to cross-examination without his consent, and the jury were allowed to give his statement just such force and weight as they saw‘proper. This being said after the defendant had finished his statement and had announced to the solicitor general that he was willing to be cross-examined, and had been so cross-examined.
As there was no specification of error in this ground, and seeing none ourselves, it must stand as sound law, certainly so far as it went.
21. The 25th and last exception was because the court failed to call the attention of the jury to the legal effect of the testimony as to good character — it having been shown by the witnesses that the defendant was a man of good character — and his counsel having insisted before the jury that the good character of the défendant ought as a matter of law, - as well as a matter of fact, to have given weight to the defendant’s statement.
[246] Questions of character, when they enter as an element into the defence set up by the accused, become very material, and so, too, when there is an effort to impeach that of a witness. In this case, however, neither the defence nor prosecution turned on the character of the defendant in the least degree. But at most, as stated in the ground we are considering, it was but a failure to charge that which counsel say should have been charged. This same question has been directly before this court, and has been ruled upon and reported certainly in thirteen if not more of its reports, beginning with the ioth and ending with the 60th Ga. In the case of Alston vs. Granberry, 26th Ga., 380, Judge Lumpkin said: “The error assigned is what the court omitted to say. Counsel have duties to discharge as well as the bench. Happy is that judge who is not guilty of sins of commission.”
Again, in Averett vs. Brady, 20th Ga., 523, this court held: “ While it is the duty of the court to charge the jury on points made in argument to the jury, growing out of the case and authorized by the testimony, yet it is no error if he fails to do so, unless at the time of the charge the counsel recalls the points to his mind. If he does not, he will be considered as having waived them, or acquiesced in the charge as given.”
Of like import will be found rulings in 10 Ga., 262; 13 Id., 34; 19 Id., 1; 20 Id., 523; and 26 Id., 380 supra; 28 Id., 200; 35 Id., 241; 38 Id., 631; 37 Id., 102; 44 Id., 593; 57 Id., 50; 59 Id., 232; 60 Id., 313.
Taking this whole case and looking at the testimony as it appears in the record, and weighing it in the light of human experience and observation, we cannot see how, under the penal Code of this state, the jury could have returned any other verdict than that of guilty.
With this testimony before him, how any unbiased mind could come to the conclusion that the danger to Wilson was so urgent and pressing at the time of the killing that in order to save his own life the killing of Tinley was absolutely necessary, is utterly beyond our comprehension.
[247] Admit all that Wilson said to be truth itself, he does not make a case of such necessity upon him as that he was obliged to take Tinley’s life to save his own at the time he says he seized the revolver, cocked it, and fired.
The knife picked up from the floor was not shown to have been deceased’s; the witness who knew him most intimately testified that he never knew him to have such a knife, or to carry weapons of any kind. When examined after his death, he had but his pen-knife in his pocket. As to the other, the circumstances surrounding this tragedy might have satisfied the jury that Eugene Wilson was the owner of that knife; that his presence there in that fatal hour was not accidental; that this strange and unusual weapon fell to the floor, only when it was seen that the revolver in the brother’s hands had done its bloody work; it was his eye alone that discovered, and his hand that took it from the floor; human eye, according to the proof, had never seen it in the dead man’s hands, and its production, circumstanced as it was, may have convinced the jury that it was there, in the finder’s hands, either for use or evidence. However all this may be, the jury on their oaths have said that the plaintiff in error was guilty of murder; a conscientious and upright judge has approved that finding, and as the record shows that the accused has had a fair and impartial trial according to the laws of the state, the judgment below must be affirmed.
Judgment affirmed.