By the Court.
Lyon, J.,delivering the opinion.
The plaintiff in error, without license to retail, and without taking the affidavit required by the Act of 29th December, 1839, (Cobb, 1039,) “not to sell or furnish spii’ituous . liquors to slaves, without an order,” etc., sold a quart of whisky, for which she was prosecuted and couvicted.
Under the law, as it existed previously to the Act of 1838, pei’sons could sell liquor in quantities of a quart and over without license. But that Act, for the purpose of suppressing the traffic in liquor with slaves, introduced this change in the old law : “ that all .venders of liquors in less quantities than a gallon should take the oath ” prescribed by that Act, whether they had license to retail or not. The plaintiff in error seems to have been ignorant in this change of the law — not a very uncommon thing, by the way — and was entirely innocent of an intention to violate the law ; for the person to whom she sold the whisky, wanted to buy a less quantity, but she would not sell it, saying that was against the law. On the trial, she rested her defense upon this want of intention to violate the law, under the provisions in *385the Penal Code: “that the jury, in criminal cases, were judges of the law and the fact.” (Cobb, 835.) And, “A person shall not be found guilty of any crime or misdemean- or, committed by misfortune or accident, and when it satisfactorily appears that there was no evil design, or intention, or culpable neglect.” (Cobb, 779.)
The Judge charged the jury, “that the defense,.if successful, would, in his judgment, be based on the violation of a very solemn oath they had taken;” that he was “ constrained to warn them, that to acquit the defendant on such a ground, that ignorance of the existence of a law is a good excuse for its violation, (not exactly the ground of defense,) would be a violation of their oaths as jurors.” In this we think^the Court committed error.
The right of the jury to judge of the law, and to acquit or convict as they shall judge, is guaranteed to them and the prisoner by the statute of the State, to which we must all bow, and that right must not be abridged, weakened-or thwarted by the thunder of the Court in their ears; that if they should take a different view of the law to himself, that they will, in'so doing, violate their solemn oaths as jurors.
The Court must impartially and dispassionately instruct the jury as to the law of the case, and leave them free in the exercise of their right and duties under that law and the facts, to convict or acquit, as they shall conscientiously judge. I agree with the Court below, that the intention is manifested by the act; that ignorance of a law is no excuse for its violation, and that when a jury capriciously acquits one palpably guilty of a crime, that they violate their oaths and solemn duties to the law and the country, and that when they do so, there ought to be no harm in telling them so. But this cannot be done without crippling, if not destroying, a principle that the law for wise purposes has lodged with the jury.
The 10th seo. of the lsi div. of the Penal Code, {Cobb, 779,) referred to by counsel in the defense, and quoted above, does not apply to cases of this kind, but to those cases only where the crime was committed by misfortune or accident, and without any evil design, intention or culpable neglect — both things misfortune, or accident — or without evil design or in-intention concurring in the perpetration
Judgment reversed.