Hill, C. J.
J. H. Spence was indicted for murder, and on his trial was convicted of voluntary manslaughter. During the term of court at which he was tried, he filed a motion for a new trial, which was heard and overruled in vacation at the time to which the hearing had been duly adjourned by the court. Sentence was pro[826]*826nouneed on the defendant during the term of the court in which he was tried. In vacation, on the day of the hearing of the motion for new trial, the defendant for the first time filed' a motion in arrest of judgment, which the court overruled, and the defendant excepted. The motion in arrest of judgment attacks the validity of the verdict, on two grounds: (1) Because the only charge in the indictment was murder, and the court did not submit to the jury any issue as to whether the defendant was guilty of manslaughter, and no part of the law of manslaughter was charged in the case; and for this reason the verdict of manslaughter was wholly illegal and amounted to an acquittal of the defendant on the charge of murder. (2) Because the evidence in the case did not in any view sustain a verdict of voluntary manslaughter, and the court and counsel for both sides took the position that there was no manslaughter in the ease. The motion in arrest of judgment further recited that it was filed after the brief of the evidence and the charge of the court had both been approved and filed and had become parts of the record in the case.
1. We think the court did right in overruling the motion in arrest of judgment. In the first place, a motion in arrest of judgment was not the proper procedure, if there was any merit in the objection made to the verdict. A motion in arrest of judgment will reach any defect apparent on the face of the record, not cured by the verdict, to which a general demurrer could have been successfully interposed before arraignment. It is also proper procedure where the verdict is for some offense not covered by the charge made in the indictment. As used in this connection, the expression “the face of the record” means, in a criminal case, the indictment and the verdict; a defect on the face of the record exists when there is any inadequacy in the allegations, not cured by the verdict, or where the verdict does not conform to the charge in the indictment. It is not, in our opinion, broad enough, to reach the charge of the court or the brief of the evidence. These are parts of the record subsequent to the trial; and if the verdict is contrary to the charge of the court for any reason, or contrary to law for any reason, or is without evidence to support it, it is ground for a new trial, and not for arrest of judgment. But even if we are not correct in the position just taken, the motion in arrest of judgment was filed too late. A motion in arrest of judgment “must be made during the term [827]*827at which such judgment was obtained.” Civil Code, §5363. In this case the motion was not filed in term, with an order taken to hear it in vacation, as might probably have been done; it was not filed until vacation, and until after sentence had been imposed by the court. This motion should properly be made before sentence. 1 Bishop on Criminal Procedure, § 1284. As the judgment or sentence of the court is in the breast of the court and subject to be changed by it during the term, the motion in arrest may probably be made after sentence has been actually passed, but it can not be made after the sentence has been passed (unless it relates to the sentence itself) and after the court has adjourned. The court lias no power over the judgment after the term in which it was rendered has passed.
2. The objections made to the verdict by the motion in arrest of judgment constitute one of the grounds in the motion for new trial. We think the contention that the verdict is illegal because the court did not charge the law of voluntary manslaughter is unsound. It is true the indictment was for the offense of murder, but the higher charge, as is well settled, includes every lesser offense embraced therein. The indictment, therefore, was not only for murder, but was for all the lesser grades of homicide. While it is well established that the jury, although judges of the law and the facts in criminal cases, must take the law from the court, yet it has been frequently held by the Supreme Court that if the trial judge should erroneously instruct the jury as to the law, and the jury should nevertheless find a correct verdict under the evidence and the law applicable thereto, the verdict will stand. In other words, the validity of the verdict is to be tested, not by the law as given in charge, but by the law as it is. Where the verdict is right in itself, as being in accordance with the evidence and the law applicable thereto, it ought not to be set aside on account of an erroneous instruction given by the court to the jury. Much less should it be disturbed because the court did not fully instruct the jury as to the law applicable to every phase of the evidence or reasonable theory deducible therefrom. Johnson v. State, 14 Ga. 55; Wellborn v. Weaver, 17 Ga. 267 (63 Am. D. 235); Potts v. House, 6 Ga. 324 (50 Am. D. 329). An exception to the verdict because contrary to the charge of the court is immaterial, unless it is also contrary to law. If the jury can disregard an erroneous instruc[828]*828tion, a fortiori it has the prerogative to find a verdict in accordance with the evidence, although the judge may fail to instruct as to the law applicable to that theory of the evidence which the jury finds to be the- truth. In this ease the court charged fully the law of murder and justifiable homicide in self-defense. The defense relied upon was justifiable homicide in self-defense. The contentions of both sides were fairly submitted. But the jury did not agree with either contention. What was the jury to do ? They could not conscientiously convict of murder, or acquit. They could have asked the court for instructions on the law of manslaughter; but if they believed that a verdict of voluntary manslaughter was the only just and true solution of the question of fact, why could they not so find? And if this finding is authorized by the evidence, it would be a palpable perversion of the purpose of a trial by jury to hold that a righteous verdict in accordance with the evidence should be set aside as illegal because the jury found the truth unaided by court or counsel, or even contrary to the views of the law entertained by both.
The foregoing remarks are based on the assumption that the facts warranted a verdict of manslaughter. But from a study of the evidence and the defendant’s statement, we are convinced that the law of manslaughter was not really involved. It is conceded that the evidence for the State demanded a verdict of murder. There was no evidence for the defendant. It is insisted that his statement to the jury made a case of justifiable homicide in self-defense. W’e do not think his statement makes a case of self-defense, actual or apparent. Construed in connection with the evidence, or considered alone, the statement shows that the killing was caused by opprobrious words. Whisky and abusive language aroused ungovernable rage, and murder was the result.
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Hill, C. J.
J. H. Spence was indicted for murder, and on his trial was convicted of voluntary manslaughter. During the term of court at which he was tried, he filed a motion for a new trial, which was heard and overruled in vacation at the time to which the hearing had been duly adjourned by the court. Sentence was pro[826]*826nouneed on the defendant during the term of the court in which he was tried. In vacation, on the day of the hearing of the motion for new trial, the defendant for the first time filed' a motion in arrest of judgment, which the court overruled, and the defendant excepted. The motion in arrest of judgment attacks the validity of the verdict, on two grounds: (1) Because the only charge in the indictment was murder, and the court did not submit to the jury any issue as to whether the defendant was guilty of manslaughter, and no part of the law of manslaughter was charged in the case; and for this reason the verdict of manslaughter was wholly illegal and amounted to an acquittal of the defendant on the charge of murder. (2) Because the evidence in the case did not in any view sustain a verdict of voluntary manslaughter, and the court and counsel for both sides took the position that there was no manslaughter in the ease. The motion in arrest of judgment further recited that it was filed after the brief of the evidence and the charge of the court had both been approved and filed and had become parts of the record in the case.
1. We think the court did right in overruling the motion in arrest of judgment. In the first place, a motion in arrest of judgment was not the proper procedure, if there was any merit in the objection made to the verdict. A motion in arrest of judgment will reach any defect apparent on the face of the record, not cured by the verdict, to which a general demurrer could have been successfully interposed before arraignment. It is also proper procedure where the verdict is for some offense not covered by the charge made in the indictment. As used in this connection, the expression “the face of the record” means, in a criminal case, the indictment and the verdict; a defect on the face of the record exists when there is any inadequacy in the allegations, not cured by the verdict, or where the verdict does not conform to the charge in the indictment. It is not, in our opinion, broad enough, to reach the charge of the court or the brief of the evidence. These are parts of the record subsequent to the trial; and if the verdict is contrary to the charge of the court for any reason, or contrary to law for any reason, or is without evidence to support it, it is ground for a new trial, and not for arrest of judgment. But even if we are not correct in the position just taken, the motion in arrest of judgment was filed too late. A motion in arrest of judgment “must be made during the term [827]*827at which such judgment was obtained.” Civil Code, §5363. In this case the motion was not filed in term, with an order taken to hear it in vacation, as might probably have been done; it was not filed until vacation, and until after sentence had been imposed by the court. This motion should properly be made before sentence. 1 Bishop on Criminal Procedure, § 1284. As the judgment or sentence of the court is in the breast of the court and subject to be changed by it during the term, the motion in arrest may probably be made after sentence has been actually passed, but it can not be made after the sentence has been passed (unless it relates to the sentence itself) and after the court has adjourned. The court lias no power over the judgment after the term in which it was rendered has passed.
2. The objections made to the verdict by the motion in arrest of judgment constitute one of the grounds in the motion for new trial. We think the contention that the verdict is illegal because the court did not charge the law of voluntary manslaughter is unsound. It is true the indictment was for the offense of murder, but the higher charge, as is well settled, includes every lesser offense embraced therein. The indictment, therefore, was not only for murder, but was for all the lesser grades of homicide. While it is well established that the jury, although judges of the law and the facts in criminal cases, must take the law from the court, yet it has been frequently held by the Supreme Court that if the trial judge should erroneously instruct the jury as to the law, and the jury should nevertheless find a correct verdict under the evidence and the law applicable thereto, the verdict will stand. In other words, the validity of the verdict is to be tested, not by the law as given in charge, but by the law as it is. Where the verdict is right in itself, as being in accordance with the evidence and the law applicable thereto, it ought not to be set aside on account of an erroneous instruction given by the court to the jury. Much less should it be disturbed because the court did not fully instruct the jury as to the law applicable to every phase of the evidence or reasonable theory deducible therefrom. Johnson v. State, 14 Ga. 55; Wellborn v. Weaver, 17 Ga. 267 (63 Am. D. 235); Potts v. House, 6 Ga. 324 (50 Am. D. 329). An exception to the verdict because contrary to the charge of the court is immaterial, unless it is also contrary to law. If the jury can disregard an erroneous instruc[828]*828tion, a fortiori it has the prerogative to find a verdict in accordance with the evidence, although the judge may fail to instruct as to the law applicable to that theory of the evidence which the jury finds to be the- truth. In this ease the court charged fully the law of murder and justifiable homicide in self-defense. The defense relied upon was justifiable homicide in self-defense. The contentions of both sides were fairly submitted. But the jury did not agree with either contention. What was the jury to do ? They could not conscientiously convict of murder, or acquit. They could have asked the court for instructions on the law of manslaughter; but if they believed that a verdict of voluntary manslaughter was the only just and true solution of the question of fact, why could they not so find? And if this finding is authorized by the evidence, it would be a palpable perversion of the purpose of a trial by jury to hold that a righteous verdict in accordance with the evidence should be set aside as illegal because the jury found the truth unaided by court or counsel, or even contrary to the views of the law entertained by both.
The foregoing remarks are based on the assumption that the facts warranted a verdict of manslaughter. But from a study of the evidence and the defendant’s statement, we are convinced that the law of manslaughter was not really involved. It is conceded that the evidence for the State demanded a verdict of murder. There was no evidence for the defendant. It is insisted that his statement to the jury made a case of justifiable homicide in self-defense. W’e do not think his statement makes a case of self-defense, actual or apparent. Construed in connection with the evidence, or considered alone, the statement shows that the killing was caused by opprobrious words. Whisky and abusive language aroused ungovernable rage, and murder was the result. There was no menace or threat accompanying the vile epithets used by the deceased to the defendant; there was nothing in the conduct of the deceased in connection with his abusive language to justify a reasonable fear on the part of the defendant that his life was in danger, or that a serious personal injury was about to be committed on him; nor was there any “appearance of imminent danger.” Passion was aroused by words alone, without threats, menaces, or any manifest intention to inflict bodily injury. The statute declares that “words,” even when accompanied by “threats, menaces or contemptuous ges[829]*829tures, shall in no case be sufficient to free the person killing from the crime of murder.'” Penal Code, §65. What we here hold is not intended to controvert the doctrine announced in the Cumming case, 99 Ga. 662 (27 S. E. 177), and frequently applied by this court, that while words, threats, menaces, or contemptuous, gestures may not be sufficient to mitigate a homicide from murder to manslaughter, yet these things may, in some cases, arouse that reasonable fear which will justify the killing.
The facts of the homicide, as narrated by the defendant in his statement to the jury, in no substantial particular distinguish this case from Malone v. State, 49 Ga. 217. See also Fallon 7. State, 5 Ga. App. 659, 663 (63 S. E. 806). We do not deem it necessaiy to give the evidence or the statement in detail. It is enough to state our conclusion. The evidence demanded a verdict of murder; and the statement of the defendant, even if believed by the jury, shows no fact, or reasonable inference from facts, to justify or warrant an acquittal. The defendant, therefore, is not in a position to demand another trial. He can not be heard to complain of a verdict strongly on the side of mercy, and more favorable to him than was authorized by law, under the evidence or his statement. Robinson v. State, 109 Ga. 506 (34 S. E. 1017). The.opinion of the evidence expressed above makes it unnecessary to consider or decide any of the objections made to the charge of the court. If there were any inaccuracies, they were harmless.
Judgment affirmed.