Per Curiam.
Movant complains that the court erred in charging the jury: “I charge you further, gentlemen, that you look to the defendant’s statement in this ease and see whether or not the defendant in his statement admitted the killing of the deceased, Bud Yates. Now the circumstances surrounding him at the time he shot and killed Bud Yates, if you find that he did shoot and kill Bud Yates, you must gather from the testimony in the case, all the evidence in the case, and from the defendant’s statement. I charge you that should you find that the defendant admitted killing Bud Yates, the law then places upon the defendant the burden of satisfying the jury that he was justified under some rule of law, unless the evidence in the case against him shows justification or mitigation.” “Movant assigns this charge as error, for the reason that it was confusing to the jury and misleading to them, in that the court informed the jury ‘that should you find that the defendant admitted killing Bud Yates, the law then places upon the defendant the burden of satisfying the jury that he was justified under some rule of law, unless the evidence in the case against him shows justification or mitigation.’ For the reason that if the defendant in making the statement or admission referred to in this charge admitted the killing, but at the same time and in the same admission stated facts or circumstances showing justification upon his part, then he would not be required to resort to ‘the evidence in the case against him’ to show justification or mitigation, as herein charged; and the instructions of the jury herein complained of eliminated from the jury’s consideration any statement or admission or confessions made by the defendant as to how the killing was done which showed a justification, and restricted the jury to ‘the evidence in the case against the defendant’ for him to show that he was justified.” Held: Under the ruling in Mann v. State, 124 Ga. 760 (53 S. E. 324, 4 L. R. A. (N. S.) 934), and subsequent cases following that case, this ground of the motion for new trial shows reversible error.
Judgment reversed.
All the Justices concur.
Mrs. Gary Maples testified: “I heard Tillman Gordon make a statement to Son Widner. Tillman Gordon said he had played hell that evening, and commenced crying. He said he had killed Bud Yates, and Son Widner asked him what was the matter, and he said that ‘Bud Yates said that he had started up the road to kill my father and mother and get Lucy and bring her home and I didn’t like it.’ Tillman Gordon said that he said: ‘I thank you, Bud, I thank you,’ and ‘pulled my pistol and went to shooting.’ He said that he, Tillman Gordon, pulled his pistol and went to shooting. If I make no mistake I was scared so bad I don’t know that I can tell exactly, but to the best of my recollection Tillman Gordon pulled a pistol out and it had two empty hulls in it and three loaded hulls. . . Tillman Gordon said he was coming to town and give up, and pulled the pistol out and handed it to Son Widner. . . He said that Bud Yates said, ‘I am going to kill your father, and then I am going to kill your brother,’ but did not say which one, ‘ and I am going to take Lucy,’ that was Charlie Yates’s wife, ‘and if you don’t like it I will kill you.’”
Sheriff B. E. Houston testified that the defendant “drove up in front of my brother’s in his car and called my brother, and I stepped to the door, and Tillman got out of his car and come on up on the porch, and he said: ‘I want you to go with me to see-Bud Tates. I have killed him; I killed him a while ago; I shot him twice. I hated to do it, but I could not stand for it, and I have come to give up.’” The sheriff testified he smelled liquor on the defendant’s breath; that the defendant said Yates called defendant’s father a vile name and said he was going to kill said father; and that defendant said that Bud Yates’s pistol was in the car by the side of him, that he picked up Yates’s pistol and shot him twice, and that he threw the pistol on the back seat o£ Yates’s car and came off. He further testified: “I searched the automobile. I did not find a weapon of any kind in the automobile. I never went inside of Bud Yates’s pockets. I felt on his pockets and found only a little knife in his pockets, and it was shut up:” There was evidence tending to show that the pistol used was not the property of-the deceased, and that he did not own and had not for many years owned a pistol. There was, in the testimony of Mrs. Maples, evidence to the effect that Widner owned the pistol or claimed to own it, and that the defendant returned it pursuant to a promise to either return it or pay for it, the weapon having been sold to him by Widner.
FF. I. Geer, for plaintiff in error.
George M. Napier, attorney-general, B. T. Gastellow, solicitor-general, T. R. Gress, assistant attorney-general, R. R. Arnold, and R. C. Hill, contra.