<p>1. One Kirbo had contributed to the employment of counsel for the defendant. Bennett was his overseer, employed on a salary. Bennett was on the panel of jurors. He answered the statutory questions on his voir dire in a manner to qualify him, and was accepted by the State and the accused. Counsel for the State knew that Kirbo had contributed to the employment of counsel for the defendant, but not that Bennett was his overseer. A few moments after the juror had been 'accepted, counsel for the State learned that he was in the employment of Kirbo. The solicitor-general moved that Bennett be excluded from the jury. The court heard evidence tending to show the facts above stated, held that Bennett was thereby rendered incompetent, sustained the challenge of the State, and, over objection of defendant’s counsel, declined to permit the juror to serve. Held, that this was error.</p> <p>2. The words “reasonable doubt” are plain English words, and elaborate discussions and amplifications of them often fail to result in elucidation. The charge on that subject, of which complaint is here made, though somewhat elaborate in its definition, is not such as to require a new trial. Jolvn v. State, 33 0a. 257.</p> <p>3. Exception was taken to the following charge of the court: “I charge you, gentlemen, that the party who sets up self-defense to justify himself in taking human life, under the law of justifiable homicide, must be without fault at the particular time of the killing, and in the particular act of killing. One can not by his own act and conduct create a necessity in another to defend himself, and then justify himself in killing the party who attempted to defend himself against the necessity of the defendant’s own creation. But of course that does not mean that he must be without any fault whatever during the entire transaction, but without fault at the time of the killing.” This charge was not error when taken in connection with the general charge.</p> <p>(a) The court was charging on the subject of justification, and not that of possible reduction of the grade of a homicide. Penal Code (1910), § 73; Wharton on Homicide (3d ed.), §§ 315, 316, 318, 319.</p> <p>4. In a criminal case where the presiding judge has fully and fairly charged the jury concerning the law of reasonable doubt, he is not bound to give a requested instruction, in effect, that if they have a reasonable doubt as to the existence of some particular and specially enumerated fact,' or what should be the proper inference therefrom, it would be their duty to give the accused the benefit of such doubt; nor, after a full and fail-charge on the subject of reasonable doubt, is he bound" to instruct the jury, on request, to the effect that if they have a reasonable doubt as to whether the circumstances surrounding the defendant at the time of the killing of the deceased were sufficient to excite the fears of a reasonable man that his life was in danger, or that a felony was about to -be committed upon his person, or as to whether he acted under the fears of a reasonable man, it would be their duty to give the accused the benefit of the doubt and acquit him. McDuffie v. State, 90 Ga. 786 (17 S. E. 105) ; Dotson v. State, 129 Ga. 727 (4), 729 (59 S. E. 774); Strickland v. State, 133 Ga. 76 (2), 78 (65 S. B. 148).</p> <p>5. A written request was made to charge the following: “I charge you, gentlemen of the jury, that shooting at another, with a gun or pistol, not in one’s own defense and not in sham battle by the military, and not under other circumstances of justification according to the principles of the code, is a felony. I also charge you that the offense of assault with intent to murder is a felony.” While the presiding judge gave a general charge as to what would constitute a felony, and, at one point of his charge, gave the rule rather more favorably to the accused than he was entitled to, the charge above recited should have been given.</p> <p>6. It is not necessary to consider the remaining grounds of the motion for a new trial in detail. Some of them were expressly abandoned. Some are controlled by what has been said above. Some are based on requests to charge, which either inaccurately dealt with the propositions involved, or were not authorized by the evidence, and some of the requests were substantially covered by the general charge. None of these grounds are such as to require a new trial.</p> <p>(a) As the case is to be returned for another trial because of certain grounds above indicated, and as the matters complained of, such as the judge’s going out of the county during a recess pending the trial, will not be likely to occur again, and as the alleged newly discovered evidence, so far as it may be admissible, can be introduced on another trial, no discussion in regard to grounds involving such matters, or in regard to the sufficiency of the evidence to support the verdict, is deemed appropriate.</p>
