"While questions of fact are exclusively for determination of the jury, the question whether or not there is any evidence to support a verdict is one of law; and if, under all legal and logical deductions from the evidence, a verdict is unwarranted, this court may and should set it aside." Rutland v. State, 46 Ga. App. 417 ( 167 S.E. 705). In the instant case the evidence did not authorize the verdict finding the defendant guilty of voluntary manslaughter, and the court erred in overruling the motion for a new trial.

DECIDED MAY 16, 1962.

The defendant was tried for the alleged murder of Roscoe Cassedy and was convicted of voluntary manslaughter. The record presents no conflict as to the events that transpired at the time of the killing. It appears from the evidence that Roscoe Cassedy, who was a resident of Statesboro, Ga., (hereinafter referred to as the deceased) received a letter on August 18, 1961, from the defendant in which the defendant complained about the quality of the work that the deceased had done in repairing some furniture for the defendant. On the day the deceased received the letter, he and his wife left Statesboro and went to Sylvania, Ga., where the defendant maintained a law office. The deceased entered the office of the defendant where the defendant was sitting behind his office desk and was conferring with J. D. Zeigler. The deceased threw the letter he had received from the defendant on the defendant's desk and said "this wasn't the agreement we made — my temper's done run up as high as it's gonna get — I'm gonna settle it." Then the deceased reached for a nearby chair. The defendant said: "I'm a sick man — I'm not able to fight you." Thereupon, the deceased picked up the chair and struck at the defendant with a swinging motion over the top of the desk. The defendant ducked behind the desk to avoid the blow and, as the deceased swung the chair again, the defendant "darted" toward one corner of the desk (diagonally from the deceased) and against J. B. Zeigler, who was sitting in a chair. The defendant was "begging" and "pleading" with the deceased not to do anything, while at the same time the deceased was "cursing" the defendant, and, as the deceased attempted to swing the chair at the defendant again, the defendant came up from behind the desk shooting at the deceased. The deceased dropped the chair, fell to the floor, and died. The evidence shows that the deceased was shot five times, but the shots were fired so fast that J. B. Zeigler did not know how many shots had been fired until the defendant removed the empty cartridge cases from his pistol. Thereupon, the defendant called the sheriff, who went immediately to the defendant's office where the killing had occurred, and he testified that the defendant stated "that he hated to call me over there on a matter of this kind but that he had had to kill a man."

J. B. Zeigler, whom we will refer to as the sole eyewitness, was not sworn as a witness at the trial. However, he made a statement to the sheriff in the presence of the defendant about the shooting and the events that occurred immediately prior thereto. He also testified at the commitment trial of the defendant that when the shots were fired the deceased was holding the chair in a "position to swing to hit" the defendant, that the defendant did not at any time pursue or run after the deceased, and that there was no way for the defendant to get away from the deceased. The contents of the statement of J. B. Zeigler and his testimony at the commitment trial were proved.

The chair with which the deceased was attempting to strike the defendant weighed seven and one-half pounds. A physician testified concerning the chair: "The question is do I think that that instrument there . . . is sufficient to produce a mortal wound of the head? Q. Of the head, yes sir. A. Yes, under certain circumstances that could produce a mortal wound. Q. . . . either temple? A. . . . Anywhere about the head, depending upon the amount of force . . . exerted on that instrument would determine, of course, the amount of force descending upon the object it struck, but that is of sufficient weight and leverage to produce a mortal injury to most anyone's skull."

The defendant in his unsworn statement to the jury stated in part: "I'm sorry I had to kill Mr. Cassedy, but he made me do it. If he had struck me with that chair I would have been a dead man. I'm not able to fight. I'm not a match for a ten year old child."

Photographs were introduced in evidence which showed the position of the furniture in the defendant's office, and the place where the deceased fell.

The defendant's motion for a new trial was overruled.

FRANKUM, Judge.

"In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied." Code § 26-1007.

As stated by the Supreme Court in Mathis v. State, 196 Ga. 288, 291 ( 26 S.E.2d 606): "The essential ingredient, mutual intent, in order to constitute mutual combat, must be a willingness, a readiness, and an intention upon the part of both parties to fight. Reluctance, or fighting to repel an unprovoked attack is self-defense and is authorized by the law, and should not be confused with mutual combat." See also Johnson v. State, 173 Ga. 734 ( 161 S.E. 590). Cf. Chestnut v. State, 112 Ga. 366 ( 37 S.E. 384). It follows that when one is reacting to repel an attack by an aggressor and his actions are prompted solely to protect his life, he is not acting under the "excitement of passion," because such acts are self-defense which are justified in the eyes of the law. Code §§ 26-1011-26-1014.

The evidence in the case sub judice does not show voluntary manslaughter. There is no evidence that there was any altercation or bad feeling between the deceased and the defendant prior to the events which transpired on the date of the killing. There is not one scintilla of evidence as an excuse for the killing that the defendant in any way provoked the deceased into making an attack. There is no evidence that the defendant had any intent toward mutual combat, or that the defendant showed a willingness to fight. See Mathis v. State, 196 Ga. 288, supra. All the actions of the defendant as reflected by the evidence were actions consistent with self-defense. Rutland v. State, 46 Ga. App. 417, supra. But even if we assume that the evidence authorized an inference that the defendant acted in a sudden "heat of passion" from an unprovoked attack by the deceased, the evidence would only present two inconsistent theories. Scroggs v. State, 94 Ga. App. 28 ( 93 S.E.2d 583), ruled upon such a situation in which the court stated: "Accordingly, two theories are presented. One of these theories is consistent with guilt. The other is consistent with innocence. `Where the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence.' Davis v. State, 13 Ga. App. 142 (1) ( 78 S.E. 866); Rutland v. State, 46 Ga. App. 417, 422 ( 167 S.E. 705)."

Furthermore, the conviction of the defendant depended entirely upon statements made by him and the statement of the eyewitness made in the presence of the defendant and proof of testimony given by him in the court of inquiry. While the defendant admitted the killing, in the same breath, he said that he "had had" to kill the deceased. In other words, his words imported that there was a necessity for his actions. As stated in Owens v. State, 120 Ga. 296, 299 ( 48 S.E. 21): "It would be manifestly unfair to hold a person criminally bound by a statement which admits the commission of an act and in the same breath legally justifies or excuses the same." And where the State relies upon such a statement of the accused to show intent, or any other essential element of a crime, and no other evidence is produced to show these elements, the evidence does not authorize a verdict of guilty. Wall v. State, 5 Ga. App. 305 ( 63 S.E. 27). There is nothing in the evidence in conflict with the defendant's statements. In fact, the eyewitness' account of the transaction fortifies the defendant's contention that, in killing the deceased, he was acting in self-defense.

The evidence does not support the verdict.

Judgment reversed. Nichols, P. J., and Jordan, J., concur.