Opinion
20498.
ARGUED JUNE 8, 1959.
DECIDED JULY 8, 1959.
Murder. Cobb Superior Court. Before Judge Manning. March 11, 1959.
Ben F. Smith, Albert Adair, for plaintiff in error.
Luther C. Hames, Jr., Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, Deputy Assistant Attorney-General, contra.
Nathaniel Spencer was indicted, tried, and convicted in Cobb Superior Court of murder, and the jury failed to return a recommendation for mercy. Thereafter, the defendant filed a motion for new trial which was subsequently amended and, after a hearing, denied. The exception is to that judgment. Held:
1. Justifiable homicide being a substantive and affirmative defense placed in issue by the evidence, and the court having failed to charge, either in specific or general terms, that it was the duty of the jury to acquit the defendant if they believed the defendant justified from the evidence, the court erred in failing to thus charge, and a new trial must be granted. Waller v. State, 102 Ga. 684 (1) ( 28 S.E. 284); Fountain v. State, 207 Ga. 144 (3) ( 60 S.E.2d 433); Boyd v. State, 207 Ga. 567 (3) ( 63 S.E.2d 394).
2. Examination of special grounds 1, 2, 3, 4, and 5 fails to disclose any error committed, hence these grounds are completely without merit.
3. The ruling in headnote 1 ordering a new trial renders unnecessary any ruling on the ground based upon newly discovered evidence.
4. The evidence was sufficient to support the verdict, and the general grounds are without merit. For the reason stated in headnote 1 the judgment excepted to is
Reversed. All the Justices concur.