ON MOTION FOB KEHEABING.
Powell, J.At the rendition of the original opinion in this case, I intended to mark myself as specially concurring, but neglected to do so. While I do not fully agree to all that is there said, I can not escape.the conclusion that the judgment of affirmance is correct; and it is deemed expedient that I express, on the application for rehearing, the views which to my mind seem controlling in the case. And I am authorized to state that my colleagues agree with me as to the principles here announced.
The reason that this court should not grant a new trial in this case is not that the record does not show error, but because, in our sincere opinion, the error shown is, so far as the complaining party is concerned, harmless. The jury in every case ought to follow the charge of the court as to the law; it is error for them not to do so; *830but whether a party will be allowed successfully to claim a new trial on account of the jury’s delinquency in this respect depends upon whether any legal hurt was to him thereby occasioned. If the jury’s departure from the law as given in charge has been solely and uneqrdvocally in the direction of favoring the complaining party, it is not only fair and proper that he should not be allowed successfully to assign error thereon, but we are sure that the uniform usage of the courts forbids that he should do so. »
In this case, if there were any fair theory of the evidence or of the defendant’s statement upon which an upright and intelligent jury could acquit him under the law, the verdict of manslaughter should be set aside. But there are only three classes of homicide, — murder, manslaughter, and justifiable or excusable homicide. There is no contention that there was not a homicide; and in our judgment there was no rational view of the evidence (including the defendant’s statement) from which it could be said that the killing was justifiable or excusable. The verdict was for manslaughter. As an upright and intelligent jury could not acquit under the most favorable view of the facts as applied to the law, it follows, from logical necessity, that unless the defendant was guilty of manslaughter (the offense of which he was convicted) he was guilty of murder; and that the only result flowing from the error of the jury in finding manslaughter, when they had not been given that offense in charge, was that the defendant was found guilty of the lower of the two offenses remaining in the case; and we can not concede that he should be allowed successfully to assert such an error as a reason for sustaining his motion for a new trial. It can not reasonably be the duty of the court to order a new trial of the case to see if another jury would acquit, when, under the law and the facts, no such verdict could properly be rendered. The end and object of courts is to give opportunity that justice may be judicially administered. In our opinion they have no duty resting upon them of taking anyr affirmative step, even in favor of a defendant in a criminal case, which could have no other apparent object than to give the party an opportunity to see if the jury could not be induced to render a verdict which neither the law nor any reasonable construction of the facts would authorize.
We understand that in all cases an error (however egregious) pertaining to the trial of the case is to be considered as harmless, *831when, if the 'error had not been committed, the complaining party could not, under the application of the law to the most favorable theory of the evidence (including the defendant’s statement in a criminal case), have been properly awarded a more favorable verdict. The suggestion of able counsel for the plaintiff in error is that this is in effect what was held in Perry’s case, 102 Ga. 365 (30 S. E. 903), and Luby’s case, 102 Ga. 633 (29 S. E. 494), both of which cases were overruled in Glover v. State, 128 Ga. 1, 7 (57 S. E. 101). We heartily agree with them that the Glover case correctly states the law, and that the Luby case and the Perry case were so strikingly wrong in principle as to cause their prompt overruling when they were subsequently reviewed. But we are not willing to concede that the present ruling is any reiteration of the erroneous features of the two cases criticised. In each of those cases the evidence was conflicting, and, while it was sufficient to authorize the conviction of murder and the assessment of the death penalty, did not demand that verdict; and on an errorless trial the defendant might, under the law and the evidence, have been properly awarded a more favorable verdict. Hence the errors in those cases were not harmless, within the rule above announced.
Able counsel for the plaintiff in error, in their strenuous motion for a rehearing, take as a text, so to speak, the following questions which they place upon the title page of their written motion, as filed: (1) “Can a legal verdict be rendered on the disputed issue when no charge of the court is given?” If the word “legal” is used in contrast to “erroneous,” we answer, “no;” but if used in absolute or formal sense, we answer, “yes.” '(2) “In other words,” they ask, “are jurors night-riders, Euklux IClans, or vigilance committees, each enforcing his own idea of justice regardless of the law of the land ?” And to this question we answer, “undoubtedly, no.” And then they ask (3), “When no charge whatever is given to control the jury in their deliberations on the disputed issue, and when not even a definition of the offense of which they convicted the man\is given to the jury, either in the indictment or charge of the court, will the appellate court refuse a new trial, merely because the judges think the evidence supports the verdict ?” Again, we answer, “no'.” But we do unhesitatingly say that while'the judges of the reviewing court have no. pbwer-whatever to decide disputes of fact, they nevertheless have the undoubted power, and, *832when the case authorizes it, the duty of ascertaining whether a given state of facts is sufficient, taken in its strongest view, to authorize this or that legal result. It is also within the province of the reviewing court to examine the evidence, to see whether any alleged'error was or was not harmful to the complaining party; for error without possibility of injury will not justify a reversal by a reviewing court, however limited its power over the facts. And lastly they ask, “In other words, can the appellate court make a verdict — try the case, — or is its duty confined to the ‘correction of errors in law and-in equity5 in the court below? Does the appellate court give judgment on the case itself, or does it give judgment on the question whether the lower court properly tried the case?55 The constitution limits the jurisdiction of this court to “correction of errors in law,55 and gives it no jurisdiction over the issues of fact; but these powers are to be exercised in accordance with the established rules of judicial procedure; and one of these rules is that error without injury will not work a reversal. We do not understand the constitution to mean that we must order a retrial of every case wherein we find that some abstract error has been committed.
The very earnestness with which counsel have presented their points in the application for rehearing, our knowledge of their personal and professional fairness and ability, and our belief in the perfect sincerity with which they insist that our judgment is wrong, have caused us to carefully look into the matter again. Law and common sense both seem to support us in the proposition that if the State5s testimony showed unequivocally that the homicide was murder, and the defendant set up no facts showing legal justification, he can not complain of a verdict of voluntary manslaughter, though that verdict was erroneous because contrary to the charge of the court.
But it is insisted that the evidence was not in this condition— that under the defendant’s statement the jury might have found him justifiable. If this were so, there ought to be a new trial. The ' evidence for the State, as well as the statement of the defendant (for he introduced no evidence), showed much moral mitigation for the homicide; the deceased evidently did much to provoke the killing, by his unreasonably abusive and taunting language ad*833dressed to the defendant; but, under the law, none of these things justify a homicide.
Under the defendant’s statement, he and another man had had a difficulty in the store of the deceased. The other man went off for a weapon. The defendant went out to his buggy in front of the store, and put shells into his double-barrelled gun and brought it inside the store and sat it down near the door. The deceased told the defendant to get out. The defendant took his gun and went out. The deceased began to curse the defendant, employing very vile and abusive language. The defendant remonstrated with him, begging him to desist from his abuse, and telling him, “I don’t want to hurt you, I am a friend to you. I didn’t load my gun to hurt you.” An outsider intervened, and, putting his hand on the shoulder of the deceased, asked him to quit cursing the defendant. The deceased, who was walking with a crutch, drew it back as if he would hit this outsider, and then turned to the defendant, saying, “You God damn, cowardly son of a bitch, you needn’t bother about shooting any one else; here, shoot me!” As to what then occurred, we quote the defendant’s statement literally: “And he changed his crutch to the other hand and put his hand in his pocket. I grabbed my gun and shot him. When I shot him I had a carbuncle on my neck and I couldn’t get my neck around. I had on my overcoat and everything when I shot him. I just took and throwed my gun down and cocked the other barrel and shot him again. I didn’t know whether I hit him the first time or not; I was looking for him to shoot me every minute; I knew he had a pistol at the time; he had it in the store; he carried it to town with him, and he carried it back with him; and when I shot the second time, saw him drop the crutch right inside the door; I saw the crutch fall.”
Did this set up a case of justifiable homicide ? The deceased used abusive language; and the placing of his hand in his pocket may be construed as a menace. Compare Malone v. State, 49 Ga. 217. But words and menaces alone do not justify. The deceased in fact had no pistol, but the defendant thought that he had one. He therefore relied upon the doctrine of apparent self-defense — a perfectly sound defense when the facts justify it. Words and menaces, while not sufficient per se to justify, may under peculiar circumstances constitute such an apparent state of danger as to arouse reasonable fears. But as was said in the leading case on this subject, as to *834reasonable fears generated by words or menaces, justifying a homicide, “There must be more than mere verbal threats. The means of inflicting the threatened injury must apparently be at hand, and there must be some manifestation- of an intention to inflict the injury presently.” Cumming v. State, 99 Ga. 662, 664 (34 S. E. 1017). In the present case the deceased was not threatening to shoot. He didn’t draw; he didn’t manifest a present intention of shooting. He merely put his hand to his pocket, where the defendant thought he had a pistol, and invited the defendant to shoot him —the act and the word probably constituting an apparent invitation from the deceased to the defendant to engage in a combat with deadly weapons. As the defendant accepted the apparent invitation, the writer thinks that in this view of the evidence the homicide was manslaughter. See Roberts v. State, 65 Ga. 431, 436 (bottom page). As is said in the Roberts case, “The mere show of a deadly weapon, without more, would not produce an exigency to justify a homicide,” and much less would it produce such an exigency for the deceased merely to put his hand into his pocket and upon a weapon there (for we may treat the case as if the deceased actually had the weapon), not with a threat that he would shoot the defendant, but with an invitation to the defendant, who was presently possessed with a loaded gun, to begin the shooting.
The Malone, Roberts, and Fallon cases, supra, besides others, seem to justify us in saying that as -a matter of law, the defendant did not set up a state of facts which justified him, and, on the contrary, admitted such a state of facts that the jurors were under their oaths bound to convict him of either murder or manslaughter. We all agree that the defendant, throughout the whole transaction, except in his final act of homicide, acted in much better spirit than did the deceased. He was much provoked, but not legally justified.
Hothing herein conflicts with the oft-repeated proposition that if the evidence of the State shows murder, and that of the defendant shows justification, or denies the homicide, and there is no middle ground, a verdict of manslaughter will not be allowed to stand. This case is within the rule announced in Carver v. State, 105 Ga. 461 (30 S. E. 433), a case differing from this one only in the fact that the error there consisted in the courts submitting manslaughter to the jury, while the error here is that the jury acted without the instruction. In that ease it was held: “Though a *835charge upon the law of voluntary manslaughter was barely warranted, the fact that such a charge was given does not, in the present case, present any reason for granting the accused, who was convicted of this offense, a new trial; for the State’s evidence made against him a case of murder, and there was no testimony which would have justified an acquittal. The homicide being manifestly felonious, and the verdict being the most favorable to the accused which could, in any view of the case, have been rendered, he was not injured by an instruction which afforded the jury an opportunity to thus grade the crime.” We feel it our duty to deny the rehearing.