1. Wе do not feel authorized to disturb this verdict. There is much in the evidence to show express malice. The Code, section 4325, in express words, declares that “provocation by words, threаts, menaces, or contemptuous gestures, shall, in no case, be sufficient to free the person killing from the crime of murder,” and there is absolutely nothing in this case more than these things. That thе deceased pulled out his knife, but made no effort to use it, and did not even open it, cаn, in no sense, be more than a menace, if it was that. From the evidence it is fairly inferable that the prisoner pulled out his knife first, and it is clear that when the killing took place the deceased had put up his knife and was leaving the room, so that the prisoner had to follow him and to reаch round the witness to get at him. Under the evidence, even with the most liberal construction of the Code, this is murder, since there is nothing in the circumstances to justify the heat of passion that is not еxpressly declared by the Code to be insufficient to reduce the killing to voluntary manslaughter.
2. We are not prepared to say that we entirely approve of the definition given by thе court of “ equivalent circumstances,” although we see a good deal of forcе in the argument to show that he has given the true meaning. It is a general rule of construction that when special things are mentioned, and then a general clause, the general clause is to be taken in the sense put by the judge.
3. But however this may be, there is nothing in the evidence in this cаse to suggest any equivalent circumstances. It is perfectly plain that “equivalent circumstаnces” does not include words, threats, menaces or contemptuous gestures, since thе Code, in terms, so says. And there is nothing else *432here, even if the deceased was in the wrong in the usе of even threats, etc., which is not at all clear. The prisoner’s declaration that hе would do with deceased’s wife as he pleased, would justify a very high degree of passion оn deceased’s part, and fairly excuse a very strong reply, and perhaps much more. So that even if the idea of Judge Clark as to the meaning of equivalent circumstances, bе wrong, this does not justify a new trial. This court does not sit here to decide abstract questions or tо .grant new trials because the judge has said or done something that is not right in the abstract. The error, to be the ground of a new trial, must be some infringement of the rights of the prisoner, and not a merе abstract error.
4. We decided in 40 Georgia, 253, that it is not a good ground for a new trial, that one or more of the jurors whо tried the case are not on the jury list. It is propter defectum. The prisoner has not only the fullest opportunity to .оbject for cause when the juror is put upon him, but has a large number of peremptory chаllenges, and it is not only a fair presumption, but is in most cases true, that the jury is made up of men which thе prisoner is satisfied with, and it is nota hardship to deny him, after verdict, the right to go to the jury list and find objections to the jurors who tried him. That list was just as accessible before as after the trial, and it would оpen the door to much abuse to allow of the practice insisted on.
5. Upon the оther question made in this record, we have passed several times. The court below was asked to charge the jury that they were to take the law from the court, but •if they conscientiously differed from the court as to what the law.was, they had a right to do so. This extraordinary request is based on tiiat section of the Code which declares, “that on every trial of a crime оr offense contained in this Code, or for any crime or offense, the jury shall be judges of the lаw and the fact, and shall in every case give a general verdict of guilty or not guilty, and on the acquittal of the defendant no new trial shall on any account be granted by the court.” Code, *433section 4646. This court has held in Brown vs. The State, 40 Georgia, that this right of the jury to judge of the law and the facts, does not authorize them to get the law except through the court. There must be some channel through which the jury are to get the law. It is their duty, their necessary duty, to find out what the law is, and to come to a conclusion upon the mattеr, just as it is their duty to find out what the facts are. They have to judge of both to come to a cоnclusion as. to both. We have held, and still* hold, that the judge is the channel through which they are to gеt the law, just as the evidence “ introduced” is the channel through which they are to get the faсts. They have no right to go out of the evidence for the facts, nor to go away from the judgе for the law. From these two sources they are to get the material for their verdjcfc, and they are thus judges of the law and facts, and must find a general verdict, including law and fact.
