1. It is not error to overrule a motion for mistrial based upon a statement of a witness for the State that the defendant had shot the deceased and had gone when the witness arrived, where the judge instructed the jury to disregard the testimony. Hall v. State, 213 Ga. 557 ( 100 S.E.2d 176); Kendrick v. Kendrick, 218 Ga. 460 ( 128 S.E.2d 496); Cherry v. State, 220 Ga. 695 ( 141 S.E.2d 412). The amended ground raising this question is without merit.

2. It was not error to overrule an objection to testimony relating to a confession upon the ground that it was not free and voluntary, where the witness had testified that it was free and voluntary. Hall v. State, 213 Ga. 557, supra.

3. Upon the trial of one charged with murder it was permissible to introduce a peace warrant the deceased had procured against the accused shortly before the killing since it showed motive, and the fact that it might also have incidentally shown bad character did not render it inadmissible. Tiller v. State, 196 Ga. 508 (3) ( 26 S.E.2d 883); Whippler v. State, 218 Ga. 198 (3) ( 126 S.E.2d 744). The objection to the testimony of the witness Gower as to the taking out of the peace warrant and the testimony of the police officer relating the statements made by the accused are likewise not meritorious for the same reason.

4. It is reversible error for the court to instruct the jury in a capital case that recommending mercy is a matter purely within the province of the jury, "taking into consideration all the facts and circumstances of the case." (Emphasis added).

5. Where the evidence shows the killing, and the only reason given by the accused was that the deceased had shot him before and on the occasion of the killing she had made some motion toward the glove compartment of her car, mutual combat is not involved, and it was not error to fail to charge thereon. Code § 26-1007; Brannon v. State, 188 Ga. 15 ( 2 S.E.2d 654); Langford v. State, 212 Ga. 364 ( 93 S.E.2d 1).

6. Amended ground 8 is not unqualifiedly approved by the trial judge, and it therefore will not be considered by this court. Hatcher v. State, 176 Ga. 454 (4) ( 168 S.E. 278); Dalton v. State, 215 Ga. 857 (2) ( 113 S.E.2d 771).

7. The evidence supports the verdict and the general grounds are without merit.

ARGUED APRIL 13, 1965 — DECIDED APRIL 20, 1965 — REHEARING DENIED MAY 6, 1965.

The defendant was indicted, tried and convicted of uxoricide without a recommendation of mercy. The evidence shows the accused shot and killed his wife with a pistol after repeated verbal and physical battles resulting in the want of domestic tranquility between them, their final separation, and the taking out of a peace warrant to prevent him from harming her. The evidence also shows that thirteen months prior to the killing his wife had shot him nine times while he was asleep following an argument, although he did not seek to prosecute her for doing so but continued to live with her thereafter. The main defense was justifiable homicide by reason of fear for his life in that the accused stated his wife had previously threatened him and when he saw her in her car he thought she was reaching for the glove compartment when she saw him, and he did not know exactly what happened thereafter. Following the trial, a motion for new trial was duly made, amended, and after a hearing, overruled. The exception is to this judgment.

DUCKWORTH, Chief Justice.

None of the headnotes requires elaboration except 4. By a long line of full bench decisions, including Johnson v. State, 58 Ga. 491; Hill v. State, 72 Ga. 131; Barfield v. State, 179 Ga. 293 ( 175 S.E. 582); and Jennings v. State, 212 Ga. 58 ( 90 S.E.2d 401), this court is committed to construction of Code § 26-1005, which leaves to the jury an unlimited power to recommend mercy with or without reason, even arbitrarily, and that it is reversible error for the judge to require the jury to consider anything in reaching its conclusion as to whether or not it will make such recommendations. There are, scattered among such decisions, many cases where the judge did restrict the jury to the evidence and circumstances, and the conviction was affirmed. But we find that the decision in the Johnson case, supra, being by a full bench, condemns any and all limitations upon the jury in that regard, and being the older is controlling. If allowed to construe the section in the absence of any prior decision construing it, the writer would construe it in the light of what it deals with. It deals with criminal law and must conform with the constitutional mandate of equal protection. I would recognize that to give each jury the arbitrary power to recommend as it chooses without regard to any fact or circumstances would deny all persons so tried of equal protection because the same jury could, in one case, recommend mercy and, in another case, factually identical, refuse to recommend mercy. The life of the one is spared while the life of the other is forfeited in identical situations. I believe the statute's provision was made in the light of the sole function of a jury, which is, to make a judgment on evidence. Therefore, the legislature intended that the jury's action be dictated by what it thought of the evidence. Had it wanted to empower a jury in this one isolated instance to act arbitrarily in performing its duty, it could and we believe it would have said so. Not having done this I think it wrong for the courts to judicially empower the jury to thus depart from its single duty of returning a verdict based upon the evidence.

The writer would agree to overrule all decisions holding to the contrary if all the Justices would concur, but lacking that concurrence, there is no choice but to follow them. I am authorized to state that Mr. Justice Candler agrees with all that the writer has written above. However, until overruled, the cited binding decisions require a reversal because of the charge.

Judgment reversed. All the Justices concur.