SUBMITTED OCTOBER 9, 1951.
DECIDED NOVEMBER 14, 1951.
Murder. Before Judge Douglas F. Thomas. Glynn Superior Court. July 19, 1951.
G. B. Cowart, for plaintiff in error.
W. Glenn Thomas, Solicitor-General, contra.
1. Since there was evidence to the effect that the killing charged in the indictment was accidental, the court should have charged, without request, the law relating to misfortune or accident as stated in Code § 26-404. Failure to so charge was, as contended in special ground eight of the amended motion for new trial, error requiring a reversal. Jordan v. State, 154 Ga. 390 ( 114 S.E. 349); Batchelor v. State, 162 Ga. 7 ( 132 S.E. 624); Willingham v. State, 169 Ga. 142 ( 149 S.E. 887); Hill v. State, 169 Ga. 455 ( 150 S.E. 587); Patterson v. State, 181 Ga. 698 ( 184 S.E. 309); Etheridge v. State, 187 Ga. 30 ( 199 S.E. 185); Adkins v. State, 198 Ga. 720 ( 32 S.E.2d 768).
2. The other special grounds of the amended motion for new trial complain of other portions of the charge or the failure to charge, none of which are meritorious. Unless reviewed and overruled, the decisions in Comer Co. v. Allen, 72 Ga. 1, Hamilton v. State, 129 Ga. 747 ( 59 S.E. 803), Dotson v. State, 136 Ga. 243 ( 71 S.E. 164), Yeates v. Yeates, 162 Ga. 153 ( 132 S.E. 768), would require a ruling that the ground complaining of the statement in the charge on justifiable homicide, that, "as I understand from counsel" justifiable homicide is involved, is without merit. However, a new trial is ordered on another ground, and we intimate no opinion as to what our decision would be on a review of those decisions for the purpose of overruling them. Certainly such a statement can never have any beneficial place in a charge and ought never to be made.
3. The general grounds are not ruled upon, since on another trial the evidence may not be the same, and we would not wish any ruling of ours to prejudice the case on the sufficiency of the evidence.
Judgment reversed. All the Justices concur.