Hill, C. J.
The rulings stated in the first three headnotes do not'require elaboration. The question of law dealt with in the last headnote, being novel, important, and interesting, justifies, if it does not demand, elaboration. The accused were on trial for murder. The jury, after having been out for some time considering their verdict, came into court and announced that they had agreed upon a verdict. This verdict was read by the solicitor-general, and was as follows: “We, the jury, find the defendants, B. L. Register and C. C. Register, guilty of involuntary manslaughter. E. L. Bacon, foreman. This April 13th, 1911.” The judge refused to receive this verdict, or allow it to be filed, and directed the jury to return to their room for further deliberation, stating to them that the court could not receive the verdict which they had attempted to return, and that the court had not charged them upon the law of involuntary manslaughter. Counsel for the defendant, immediately after the jury had returned to their room, asked that the judge charge the jury as to the grades of involuntary manslaughter, and reduced the request to writing; and the court refused to give the instructions requested, or to charge the jury upon the law of involuntary manslaughter. The judge had the jury brought back into the court-room, and the following colloquy took place between the court and one of the jurors: The court: “I just called you out, gentlemen, to see what the trouble was, if any, — if there was any way in which the court could help you as a matter of law. Of course the facts, the court could not intimate any opinion as to these.” Juror: “We want to know as to the degrees in this manslaughter.” The court: “I don’t quite understand the inquiry, gentlemen.” Juror: “We want to know whether or not there was more than one kind.” The court: “I gave in charge instructions as to voluntary manslaughter. What is your inquiry now, Mr. Foreman?” Juror: “We wanted to know if there was more than one kind, that is, involuntary manslaughter.” The court: “The court gave you instructions with reference to voluntary manslaughter. The court did not give you any instructions with reference to involuntary manslaughter.” Juror: “That is all.” After this the jury retired, and brought in a verdict of guilty of voluntary manslaughter. The [625]*625motion for a new trial alleges that this was error, (1) because the accused had the right to have the first verdict filed, it being the verdict of the jury in the case, and it being the intention of the jury to give the defendants the benefit of the lower grade of punishment provided for the crime of involuntary manslaughter; and that the legal effect of such verdict was that the defendants stood guilty of the involuntary killing of a person while engaged in the commission of an unlawful act, the heaviest punishment for which is three years in the penitentiary; and (2) because the defendants were entitled to have the jury charged as to the two grades of involuntary manslaughter, the jury having stated that the intendment of their verdict was to reduce the grade of punishment, and, by refusing either to allow the verdict or to charge the jury upon the law of involuntary manslaughter, the presiding judge deprived the jury of their rights as jurors, and forced them to return the verdict of voluntary manslaughter, which was thus not a free expression of the sworn opinion of the jury, and, therefore, not a legal verdict.
The form in which this question is raised is probably not technically correct. It should have been made by direct exception at the time of the action of the court in refusing to receive the verdict of involuntary manslaughter and directing the jury to return to their room for further consideration, or by an exception contained in the final bill of exceptions. But regardless of the manner in which the question is raised, this court thinks that the question as presented in the motion for a new trial is of such character as to demand a decision, as, in our opinion, the question lies rat the very foundation of-the right of jury trial.
It is interesting to note that the question here made has never before, except on one recent occasion, occurred in the history of criminal trials in this State. The previous occasion referred to was in the case of Darsey v. State, 136 Ga. 501 (71 S. E. 661), in which the judgment of the trial court was affirmed by operation of law, the Justices of the Supreme Court being evenly divided in opinion. In that case the question, although identical as to principle, was presented somewhat differently to the Supreme Court from the manner in which the question is presented to this court in the present case. The Darsey case was an indictment for murder. The trial judge instructed the jury on the law of murder and the law of voluntary manslaughter and the law of justifiable homicide, and as to'the [626]*626form of their verdict in each event. The court did not instruct the jury as to the law of involuntary manslaughter. The jury nevertheless returned a verdict in open court, which was received by the clerk and published, finding the defendant guilty of the offense of involuntary manslaughter. The judge refused to receive this verdict and instructed the jury that he had not charged them on the law of involuntary manslaughter, and to retire, and find a verdict, and further instructed them to strike from the indictment the verdict of involuntary manslaughter, stating that it was not proper and in legal form. The jury returned to their room, and, failing thereafter to agree upon a verdict, the court, over the objection of counsel for the accused, declared a mistrial. Counsel for the accused insisted that the jury had already found the defendant guilty of involuntary manslaughter; that the verdict had been published; that it was a legal verdict finding the defendant guilty of the highest grade of involuntary manslaughter, and that the court had no power in such case to declare a mistrial. It may be also stated that counsel for the accused, when the court refused to receive the verdict of involuntary manslaughter and directed the jury to return to their room, objected to this action of the court and insisted on a reception of the verdict. When the case was again called for trial the accused filed a plea of former conviction and former jeopardy, and, on an agreed statement of facts, this issue was presented to the presiding judge, who decided the issue in favor of the State, and the defendant excepted. On the question as thus presented, the Supreme Court, as before stated, divided equally, Justices Lumpkin, Beck, and Atkinson being of the opinion that the decision of the trial judge was error, and that the plea should have been sustained, and Chief Justice Fish, Presiding Justice Evans, and Justice -Holden being of the opinion that the court did not commit an error in overruling the plea of former jeopardy, as the allegations therein were insufficient as a bar to further prosecution of the case.
It was insisted, in the argument of learned counsel for the defendant in error, and also in the brief filed in this court, that the judgment in the Darsey case is binding on this court on the question now raised. We do not concur in this view.. By the constitutional amendment creating this court, “the decisions of the Supreme Court shall bind the Court of Appeals as precedents.” But in the Darsey case the court did not make any decision. The Justices of the [627]*627court divided evenly as to what decision should be made, and by operation of law the judgment of the lower court was affirmed. This by no means constitutes any decision of the Supreme Court. It is simply an affirmance of the judgment below as to that particular case, and does not amount to a decision of the Supreme Court, and the opinion of one half of the Justices of the Supreme Court is entitled under the law to no more weight with this court than the opinion of the other half, and the fact that the judgment of the trial court strikes the balance in favor of the affirmative has no legal effect whatever as precedent or authority. Of course it is desirable that there should be no conflict, real or apparent, in the decisions of this court and those of the Supreme Court, and the decision by this court on this question will present no conflict, but the question is before this court, and the plaintiff in error is entitled to a decision of the question, and this decision this court, in the discharge of its duty rinder the law, is obliged to render. A majority of the court is clearly of the opinion that the ruling of the trial court on this point was erroneous, and that the motion for a new trial should have been granted because of this error.
The fundamental law of this State declares that “the jury in all criminal cases shall be the judges of the law and the facts.” Constitution, art. 1, sec. 2, par. 1 (Civil Code (1910), § 6382). And this has always been the law in this State. In the earlier decisions the Supreme Court held that this provision of law meant that the jury were judges of the law even to the extent that they could determine the law to be different from that given in the judge’s charge. In the case of Ricks v. State, 16 Ga. 600, after quoting from the Penal Code as follows: “On every trial of a crime or offense contained in this Code, or for any crime or offense, the jury shall be judges of the law and the fact, and shall in every case give a verdict of ‘ guilty ’ or ‘ not guilty ’; and on the acquittal of any defendant or prisoner no new trial shall, on any account, be granted by the court,” the court says: “The meaning of this plainly is, that it is the jury and not the court — the jury whose right and whose duty it shall be, to be the judges of both what the law is and what the fact is; that is to say, whose right and whose duty it shall be to judge — to decide both what the law is and what the fact is; and that after having judged, decided what the law is, and the fact is, they shall give their judgment — their decision in the form of [628]*628a general verdict of ‘ guilty/ or ‘ not guilty/ ” In these earlier decisions it is held that if the jury can not conscientiously adopt the law as it is given in the charge of the court, it is not only their right, but their duty, to render a verdict according to the opinion which they entertain of the law. This was the uniform holding of the Supreme Court in the ante-bellum period. The decisions are collated in 4 Michie’s Encyclopedic Digest of Georgia Deports, 37. The interpretation now made by the Supreme Court of this provision of the law is that while jurors are judges of the law as well as of the facts in criminal eases, they must accept the law as laid down and expounded to them by the presiding judge. Beginning with the ruling in the case of Brown v. State, 40 Ga. 689, this has been the uniform interpretation of this law by the Supreme Court to the present day, and we may consider the law as now settled that in the trial of criminal cases it is the duty of the jury to take the law from the court, as it is their duty to take the evidence from the witnesses.
But suppose the jury disregards its duty in a criminal case and returns a verdict outside of the law as expounded by the judge, and without any evidence to support it as given by the witnesses, what would be the effect of such a verdict ? The accused has a statutory remedy. He can file a motion for a new trial and have the verdict set aside, because contrary to law, or without any evidence to support it. But what can the State do? It certainly can not have such a verdict set aside on motion for a new trial, for in no case can the State file such a motion, and no new trial shall on any account be granted by the court at the instance of the State. What the State can not do directly, the trial judge can not do for the State indirectly. If a verdict of acquittal is a complete bar tó any further prosecution, the court has no authority to continue any further prosecution of the case after the verdict of acquittal by the jury. It is wholly immaterial whether the verdict is supported by the evidence or by the law. If a verdict found by the jury is included within the crime as charged by the indictment, and is in form correct and explicit, the court is powerless to change it. The court is powerless to direct the jury to change it after it has been published. It stands forever as a protection to the accused and as a complete bar to any further prosecution for the same transaction. In the case’ of Kitchens v. State, 41 Ga. 217, Judge McCay [629]*629uses the following language: “If the jury fails to heed the charge of the judge and finds the prisoner guilty, the court is authorized to grant a new trial. If the jury fails in favor of the prisoner and find him not guilty, although there is no remedy for the error, it is none the less a wrong.” The learned Judge holds that this would be a wrong in the jury because it would be their duty to receive the law from the judge, but if their failure to do so operates in favor of the prisoner, the conclusion is, notwithstanding the wrong, that there is no remedy for its correction. It can not be doubted that an acquittal of the accused would operate as a complete bar to any further prosecution, however much the acquittal might be against the evidence and the law. Where the trial is for murder and the verdict is for an inferior grade of homicide, this is in legal effect an acquittal of all the higher grades of the crime. Jordan v. State, 22 Ga. 559.
In this case the verdict of involuntary manslaughter which was found by the jury in the first instance was an acquittal of the defendants of all the higher grades of the homicide, and must be treated as equivalent to a finding that the defendants were guilty of involuntary manslaughter in the commission of an unlawful act. Thomas v. State, 121 Ga. 331 (49 S. E. 273). “When only a minor offense is found, the finding, unless set aside at the prisoner’s instance, is a full and complete acquittal of the major offense charged.” Miller v. State, 58 Ga. 203. Of course, where a verdict is not in proper form, or where it is uncertain what the jury intended to find by their verdict, or where that verdict is for an offense not covered by the indictment, the judge may send the jury back for further 'consideration of the case. Cook v. State, 26 Ga. 593; Mangham v. State, 87 Ga. 552 (13 S. E. 558). But if the verdict is explicit and is included in the charge set out in the indictment, and if it appears to be the deliberate and intentional finding of the jury, though it may be in the very teeth of the charge and wholly without any evidence to support it, the court is obliged to receive it; and to refuse to do so is, in the opinion of 'a majority of the court, under the law of this State, an unwarranted invasion by the judge of the exclusive province of the jury. Mr. Bishop, in his work on Criminal Procedure (2 New Or. Proc. § 642), uses the following language: “A verdict contrary to instructions, for a less degree of the offense than the evidence proves, must be received [630]*630and carried out. Certainly there is no higher duty on the jury to observe the instructions of the court than there is upon the jury to find a verdict according to the truth in the evidence.” ProfEatt, in his work on Jury Trials (§ 467), in discussing the conclusiveness-of a verdict, lays down this principle as without any exception: “In one instance a verdict is final; that is, in qase of a verdict of acquittal. Whatever errors may have been made by the jury in the application of the law, or however perversely they may have acted,- and in defiance of the plain and positive instructions of the court, their verdict of acquittal in a criminal case is .final. The court can not set it aside for any error of law, or any disregard of the evidence. While in case of a conviction the prisoner has a right to have the action of the jury reviewed, in case of acquittal no such right is given to the people. It is for this reason, no doubt, that the doctrine has been maintained, that in criminal cases the jury are the judges of the law and fact.” And Mr. Bishop, further discussing the principle, uses the following language: “If, obeying their own conscience and disobeying the judge, they [the jury] return a ver- ■ diet of acquittal, he can neither punish them nor set the verdict aside, though he can set aside a conviction. This power of granting a new trial,' therefore, furnishes no reason or test of the rights of juries. They can not convict a defendant contrary to the direction of the court, but they may acquit him in like disobedience whenever their own judgments demand. The judge may in his charge convey to them his ideas of their duties, but the law restricts him from interposing with his power.” The great Mansfield declared: “It is the duty of the judge, in all cases upon general issues, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter between God and their own consciences.” 3 T. R. 438, note 9.
In a criminal case, therefore, we conclude that while it is the duty of the jury to take the law as given them in charge by the -court, and the evidence as presented to them by the witnesses, yet if they take the law and the evidence into their own hands and- find a verdict explicit as to form and intention, and included within the crime charged in the indictment, the finding is within their power as it is written in the law, and the verdict is an absolute imotection from any subsequent prosecution for the same transaction, whether or not that verdict is received formally and filed by the court; and the [631]*631court lias no power to nullify or set aside the verdict of the jury by refusing to receive it and have it filed in such case. In other words, after a verdict of the character above described in a criminal case has been found by the jury and published in court as their verdict, the judge has no right, under the statutes of this State, to take issue with the jury as to the legality of that verdict, or to get up any controversy with the jury as to whether the verdict is contrary' to law or without any evidence to support it, or to coerce them to any further consideration of their verdict. Now, in this case, the indictment being for murder and the jury having found a verdict of involuntary manslaughter, which is embraced in the charge of' murder, and.that verdict having been returned into court and published by the jury as their verdict, and there being no objection by any member of the jury that the verdict was not the verdict of the ' twelve jurors, the court had no right to send the jury back for any further deliberation. It is wholly immaterial whether this verdict was in obedience to the instructions of the court, or was in accordance with the evidence in the case. It was the finding of the exclusive arbiters on the question of the defendants’ guilt or innocence, • and the reception of this verdict and its filing of record was a mere matter of formal procedure, and did not in any manner affect the substantial rights of the accused as fixed by the verdict; and the most substantial right was that they were acquitted by this verdict of all the superior or higher grades of the crime charged against them; and it seems to the majority of this court that it would be to overthrow the very foundation of the right of trial by jury and to place the entire matter into the hands of the trial judge, both under the law and the evidence, to permit the judge in such case to send the jury back for further consideration of their verdict.
In Fagg v. State, 50 Ark. 506 (8 S. W. 829), the accused was tried on an indictment for murder, and the jury found the following verdict: “We, the jury, find the defendant guilty of manslaughter, but can not agree upon his punishment.” In Arkansas the statute, as in this State, makes two degrees of manslaughter, voluntary manslaughter and involuntary manslaughter. The judge, in sentencing the defendant, treated this verdict as one of voluntary manslaughter. The appellant contended that the killing was either .murder in the first degree, or justifiable homicide, and therefore that the jury could not legally return a verdict of manslaughter. [632]*632In the course of the opinion the Chief Justice say^s: “Where the evidence and the instructions of the court demand a verdict of murder, but the jury finds manslaughter, there is no alternative but tu sentence the prisoner accordingly. The court can not withhold from the jury the power to return a verdict according to their will for-any grade of the offense charged against the defendant. The court 'can only instruct juries as to their duty, giving them in charge the law applicable to the facts, and no other. If there is no evidence whatever tending to establish a lower grade of homicide than murder in one instance, or voluntary manslaughter in another, the court should decline to give to the jury directions as to any lower grade of homicide, and it is the jury’s duty to take the court’s exposition of the law as that applicable to the case. But the court can mot direct a verdict for the higher offense, nor restrain the jury from returning it for the lower grade.” One of the headnotes applicable to this point is as follows: “On the trial of an indictment for murder, although both the instructions of the court and the evidence call for a conviction of the highest grade of the offense charged, there is no power to restrain the jury from returning a' verdict of manslaughter; and in such case the accused must be sentenced according to the finding of the jury.”
To refuse to receive the verdict in a criminal case, on the ground that the verdict is for a grade of the offense charged in the indictment but not covered by the instructions of the court, and without evidence to support it, is to restrict the exclusive right of the jury in their finding of a. verdict to that view of the law and the evidence entertained b}r the trial judge, and in its last analysis is destructive of the right of jury trial. And certainly, in a State where the statute deprives the judge of the right to intimate any opinion on the facts, and makes such intimation of opinion a mandatory ground for a new trial, the refusal of the trial judge to receive a verdict is, although indirect, a very strong method of informing the jury that the trial judge entertains a different opinion from that entertained byr the jury on the evidence as applicable to the law. In the case of Grant v. State, 33 Fla. 291 (14 South. 757, 23 L. R. A. 723), the indictment was for murder, and the jury brought in a verdict of manslaughter in. the first degree. The judge refused to receive this verdict and stated to the jury in effect that it was defective, as there were no degrees in manslaughter, and [633]*633that they must retire and present a verdict in proper form. In discussing the right of the judge in that case to give such direction, the Supreme Court said: “The direction was to retire 'and present a verdict in a proper form. There is nothing here to indicate the character of the verdict to be returned, except that one for manslaughter in the first degree was not in proper form. If there was any error on the part of the judge, it was in refusing to receive the first verdict as presented, and in not proceeding to affirm it in the proper way. It is of course true that when a complete formal verdict is returned by the jury, the court has no discretion in the matter, but must proceed to affirm it.” In the case now under consideration no objection was made as to the form of the verdict, but the objection, in effect, was that the verdict was unauthorized by the evidence and the law applicable thereto, as covered by the instructions of the court, and the jury was directed not to change the form of the verdict, but to retire and consider the question of evidence, according to the instructions of the court. In other words, the court, in effect, told the jury in the present case that their verdict for involuntary manslaughter was without any evidence to support it, and was contrary to his instructions as to the law applicable to the issues made by the evidence.
In the case of Spence v. State, 7 Ga. App. 825 (68 S. E. 443), this court held that on the trial of an indictment for murder the jury may convict of any lesser grade of homicide, and a verdict of voluntary manslaughter in accordance with the evidence would be a legal verdict, although the court did not instruct the jury on the law of voluntary manslaughter. A majority of the court in the case sub judiee go even further than the decision announced in the Spence case, and entertain the view that a verdict for a lower grade of homicide on the trial of an indictment for murder is binding upon both the trial judge and the State, and can not be set aside or avoided except at the instance of the accused. As before •stated, a verdict of guilty of a lesser grade of homicide than that charged in the indictment is an acquittal of the higher grade. To allow the judge to refuse to receive it is to allow him to refuse to permit the jury to acquit of the higher grade of homicide because the verdict is not sustained by the evidence as the judge views it. The fact that the State can not except to a wrong verdict and the defendant can do so is immaterial and furnishes no answer to the [634]*634argument. -This is true of every error, either of law or fact, in criminal cases, for no error against the State can be corrected, while any error against the accused can be corrected. This arises from the general rule that no one can be twice put in jeopardy, under the constitution of this State, unless the verdict is set aside on his own motion, or by the direction of a mistrial in a proper case. Civil Code (1910), § 6364. What is here held is, we thi.nk, not in conflict with the well-settled rule that the trial judge is not required to charge any part of the law which is not in liis opinion applicable to the evidence; and the refusal of the court in this case to charge the law of involuntary manslaughter was not erroneous, under the .evidence, but the refusal to receive a verdict which was clear and explicit in its terms, of a lower grade of homicide embraced in the charge made by the indictment, and sending the jury back with instructions to resume their consideration of the case, was, in the opinion of a majority of this court, error, and in its last analysis would tend to destroy the right of trial by jury, and to place in the hands of the trial judge the exclusive determination of the ultimate guilt or innocence of the accused.
We have not referred to the colloquy between the judge and the jury subsequently to the return of the verdict of involuntary manslaughter, and the absolute refusal of the judge to receive the verdict, and his direction to the jury to retire and resume their deliberations. If we are right in the view presented, that the verdict of involuntary manslaughter was, under the circumstances stated, a .final verdict, and it was-the duty of the court to receive it, the subsequent action of the court was wholly immaterial. We think, however, that a fair deduction from the language used by the jury in reply to the judge’s inquiry was an expression of a desire to adhere to the verdict of involuntary manslaughter, if there was such a grade of homicide, and they were prevented from doing so because the judge declined to answer their inquiry, except by telling them that the court had “given instructions only as to voluntary manslaughter.” This was equivalent to telling the jury that so far as the evidence in this case disclosed, there was no such offense as involuntary manslaughter. It will be noted that the judge’s refusal to receive the verdict of involuntary manslaughter was not on the ground that the verdict was imperfect or incomplete in that it did not clearly express the intention of the jury on the grades of [635]*635involuntary manslaughter, whether the jury intended to find the accused guilty of involuntary manslaughter in the commission of an, unlawful act, or involuntary manslaughter in the commission of a lawful act without due caution and circumspection; but the refusal was placed squarely on the ground that the. jury had found a verdict contrary to his instructions. ■ AYe think the judge was authorized to assist the jury in making the verdict explicit as to the degree of involuntary manslaughter, but he could not intimate what sort of verdict the jury should find. Turbaville v. State, 58 Ga. 546 (3). His refusal to explain the grades of involuntary manslaughter after the jury had found a verdict for this offense, and when they requested him to do so, and he insisted in effect that they could only consider the offense of voluntary manslaughter, approached near, if it did not actually reach, an intimation of opinion on the subject. The jury ought to have followed the instructions of the judge as to the law. It was wrong for them to disregard these instructions, just as it would be wrong to find a verdict not supported by the evidence; but if the wrong is perpetrated by the jury against the law, or against the weight of the facts, in the language, of Judge McCay, “the wrong is without remedy,” except at the instance of the accused; and in the words of Mansfield, it “is a matter between God and their own consciences.”
Suppose the jury in this case, after the refusal of the judge to receive their verdict, had persisted, and again returned the same verdict, could the judge have legally declared a mistrial? AYould not the accused have been protected from any subsequent trial bjr the plea of autrefois convict, if the judge had declared a mistrial? Suppose the judge had said to the jury, when they brought in their verdict of involuntary manslaughter: “ Gentlemen of the jury, you have -found a wrong verdict, one wholly without evidence to sup}Dort it and in the teeth of my instructions on the law, and I therefore set it aside, and direct that you retire to your room and resume your deliberations,” would this not have been a clear invasion of the exclusive province of the jury? Is there any substantial difference in this supposed action of the judge, and what was done in this case? Judgment reversed.