WITT v. STATE

MOBLEY, Chief Justice.

Larry Witt was indicted for murder and convicted of voluntary manslaughter. His conviction was affirmed by the Court of Appeals. Witt v. State, 128 Ga. App. 645 ( 197 S.E.2d 401). This court granted certiorari to review a ruling by the Court of Appeals in regard to the charge to the jury.

In the fourth division of its opinion the Court of Appeals quoted from Waller v. State, 102 Ga. 684 (1) (28SE 284), where it was held that it was "erroneous to sum up the contentions of the accused, the same, if true, making a clear case of justifiable homicide, without distinctly informing the jury that if the accused were justifiable in his act, he should be acquitted." The court of Appeals then stated that it felt that "under the charge as a whole the jury must fully have understood that, if it found the defendant justified, it could not return a guilty verdict," and held that the error in failing to charge this principle of law was harmless.

The evidence for the accused and his statement required a charge on justifiable homicide on the theory of self-defense. Under the new criminal code (Code Ann. § 26-902; Ga. L. 1968, pp. 1249, 1272), as under the former law (Code of 1933, § 26-1017), justifiable homicide is a substantive, affirmative defense.

"Justifiable homicide is a substantive and affirmative defense; and where such defense is in issue and the court does not specifically, or in general terms, inform the jury that, if they should believe the defendant justified, it would be their duty to acquit him, a new trial must be granted." Boyd v. State, 207 Ga. 567 (3) ( 63 S.E.2d 394); Fountain v. State, 207 Ga. 144 (3) ( 60 S.E.2d 433); Spencer v. State, 215 Ga. 183 (1) ( 109 S.E.2d 588).

The Court of Appeals erred in holding that it was harmless error in the present case to fail to charge that it was the duty of the jury to acquit if they believed that the accused was justified.

Judgment reversed. All the Justices concur.