
    Little v. The State.
    Criminal Law, 16 O. J. p. 1063, n. 85; p. 1066, n. 89.
    Homicide, 30 O. J. p. 57, n. 61; p. 368, n, 16; p. 385, n. 16.
    Juries, 35 O. J. p. 252, n. 59,
   Hines, J.

1. A request for instruction which does not state-the law correctly is properly refused. Thompson v. State, 55 Ga. 47 (5).

2. The refusal of the trial judge to give in charge to the jury the instruetion upon reasonable fears, as requested by the defendant, was not error, as it omitted to embrace the essential elements of the reasonableness of the fears and felonious character of the shooting. The fear which will wholly justify a homicide must be one of a felony apparently about to be committed by the deceased upon the slayer. Penal Code (1910), § 71; Freeman v. State, 112 Ga. 48 (5) (37 S. E. 172); Long v. State, 127 Ga. 350 (56 S. E. 444) ; Johnson v. State, 136 Ga. 804 (72 S. E. 233) ; Drew v. Stale, 136 Ga. 658 (71 S. E. 1108). The allegation that the defendant was under an honest belief and fear that the deceased was “making an effort to shoot him” was not the equivalent of an allegation that the defendant was under a fear that the deceased was making an effort to commit a felony upon him, as a shooting may not be felonious. It follows that the requested instruction was not accurate, and for this reason was properly refused. Besides, as the judge fully and fairly charged the jury the law of reasonable doubt and the principle of reasonable fears as a justification for homicide, he was not bound to comply with this request. Dotson v. State, 129 Ga. 727 (4) (59 S. E. 774) ; Campbell v. State, 144 Ga. 224 (4) (87 S. E. 277).

No. 6423.

March 15, 1928.

Murder. Before Judge Park. Morgan superior court. December 10, 1927.

This is the second appearance of. this case in this court. Little V. State, 164 Ga. 509 (139 S. E. 37). The evidence in the former trial, in its aspects most favorable to the defendant, is set out in the third division of the opinion. It was substantially the same upon the last trial, with one exception: On the first trial George Shaw, a witness for the State, testified that the deceased did not draw his pistol until the defendant had fired the third shot, and on the last trial this witness swore that about the time the defendant fired the first shot the deceased drew his pistol. The jury convicted the defendant of murder, with a recommendation to mercy. He made a motion for a new trial upon the general grounds, and upon the following special grounds: “1. That the court erred in refusing to give in charge to the jury the following written request, which was presented to the trial judge before the conclusion of his charge, to wit: * I charge you that if you believe in this case, or if you have any reasonable doubt about it, that Little shot Herrin under an honest belief and fear that Herrin was then and there making an effort to shoot him, and if you believe, or have any reasonable doubt about it, that Little is a reasonably courageous and prudent man, and if you further believe, or if you have any reasonable doubt about it, that the circumstances existing at the time were sufficient to justify Little in believing that Herrin was attempting to shoot him, and that Little shot and killed Herrin under the influence of that belief, and that fear, and not in a spirit of revenge for some past wrong, real or imaginary, then I charge you that you will not be authorized to find Little guilty of any offense, although you may be satisfied that Little was mistaken, and that in fact Herrin did not intend at the time, and was not attempting at the time, to do Little any violence whatsoever/ Movant says that the principle of law set out in said request to charge was pertinent to the case under the statement of the defendant, and that said principle was not embodied in any part of the charge of the court. 2. Because the court erred in holding that the juror, J. B. Harris, was a competent juror, and movant objected to his competency on the ground that he was a member of the grand jury of Morgan superior court at the March term, 1927. No grand jury served at the June term, 1927, of said court. Movant contends that, under the provisions of Code section 824, said juror was ineligible to serve as a traverse juror at the Sept, term, 1927, of said court. Movant was compelled to challenge and did challenge said juror. The peremptory challenges of movant were not exhausted.”

3. A juror who has served as a grand or traverse juror at any session of a superior, county, or city court is ineligible for duty as a juror at the next succeeding term of such court, except that a traverse juror may serve as a grand juror at the next term of the superior' court, and except further that this ineligibility does not exist in a county where the grand-jury box contains not more than one hundred names and the petit-jury box contains not more than three hundred and fifty names. Penal Code (1910), § 824; Acts 1911, p. 72; 6 Park’s Code, § 824. But this principle only disqualifies a juror for service at the next succeeding term after he has served at the preceding term. So where a grand juror served at the March term, 1927, of Morgan superior court, and where no grand jury served at the succeeding June term, 1927, of that court, such grand juror was eligible to serve as a traverse juror at the September term, 1927, of that court, and the trial judge did not err in so holding.

4. The verdict is supported by evidence.

Judgment affirmed.

All the Justices concur.

J. E. Pottle, E. B. Lambert, and Orrin Roberts, for plaintiff in error.

George M. Napier, attorney-general, Joseph.B. Duke, solicitor-general, T. B. Gress, assistant attorney-general, and A. G. Foster, contra.  