*521 By the Court.

delivering the opinion.

In the detailed statement of facts as made by the Court to the jury, in the hypothesis on which he rested, the law applicable thereto, in the charge given, one view of the case upon the evidence was omitted, which was of the utmost importance to the defence. The circumstances of the killing are ascertained entirely from the declarations of the defendant. The first reason given by the accused was made, in two or three minutes after the shooting, to the witness, Thompson. Cox then said, that “ he went up to the negro, and the negro took hold of him, and he shot him.” This declaration was a part of the res gestee ; was. evidence for the prisoner, and was made at or near the time of'the shooting, when the true inducement or necessity for shooting was impressed most strongly on his mind. From that impression of the mind he is supposed to have spoken and acted. It was the version on which the defence was put, and was the evidence of the defendant.

Now, if the prisoner shot while the negro had hold of him, or upon the idea that it was necessary to do so in his defence, he is not guilty of a crime, and ought not to be convicted of one. The Court, by the charge made in effect, .excluded this view; he rejects this evidence as furnishing a basis on which the jury should act in their deliberations, and instead, takes the version or declaration of the prisoner as testified to by the witness, Chapley Echols, which was put in evidence by the prosecution. Although the Court does not, in so many words, direct the jury that this first declaration was not evidence, and should not be considered by them, yet by not including it in his hypothesis, he not only left them at liberty to disregard it altogether as he had done, but his failure to do so was well calculated to impress the jury with the idea that it was worthless as evidence. For this reason we think the charge had a tendency to mislead the jury, and was therefore erroneous. In so holding, however, we do not hold that it is the duty of the Court, in his charge to the jury, to sum up or state the facts in proof by hypothe*522sis or otherwise, but if he undertakes to do so, he must include all that might be important to the defense.

Let the judgment be reversed.