
    Turner v. The State.
    No. 13126.
    May 23, 1940.
   Bell, Justice.

1. It is not error to fail to instruct the jury on the law of justifiable homicide where there is no evidence that the killing was justified. Miller v. State, 139 Ga. 716 (4) (78 S. E. 181); Benjamin v. State, 150 Ga. 78 (2) (102 S. E. 427).

2. In the instant case there was no evidence to show that the alleged homicide was justifiable either under the doctrine of reasonable fears or under the rule as to self-defense; and consequently the judge did not err in failing to charge upon the law of justifiable homicide as related to either theory.

(а) The extrajudicial statements declared by witnesses to have been made by the accused did not exculpate him, as contended.

(б) His statement to one of the witnesses “that he was protecting himself” was- a mere conclusion, and, being contradicted by the statements of fact made by him in the same connection, did not show justification. Sweat v. State, 107 Ga. 712 (33 S. E. 422) ; Ogletree v. State, 115 Ga. 835 (42 S. E. 255).

3. Nor was there anything in the defendant’s statement to the jury to show justifiable homicide, as insisted in the motion for new trial. Moreover, the omission, without request, to charge the jury on a theory which finds support only in the prisoner’s statement at the trial is not erroneous. Felder v. State, 149 Ga. 538 (101 S. E. 179) ; Hill v. State, 169 Ga. 455 (5) (150 S. E. 587) ; McLendon v. State, 172. Ga. 267 (2) (157 S. E. 475).

4. The evidence authorized the verdict, and the court did not err in refusing a new trial. Judgment affirmed.

All the Justices concur.

Gilbert G. Robinson, for plaintiff in error.

Milis G. Arnall, attorney-general, M. L. Forrester, solicitor-general, Duke Davis and G. M. Gregory Jr., assistant attorneys-general, contra.  