By The Court—
McCAY, J.,delivering the opinion.
We see no error in the charge of the Court in this case. It Is only put hypothetically to the jury, that if the prisoner did so and so, under such and such circumstances, then he is guilty. It is left entirely with the jury to find the facts and the Judge gives no opinion upon them. There is also abundance of proof to justify the charge. The only thing the Judge says positively is, that the law holds the prisoner guilty, if certain facts are proven. This it was as well the right as the duty of 'he Judge to say under the proof.
The Judge is the organ of the State, to inform the jury what Is the law, and though the jury is the judge both of the law and the fact in a criminal case, it is nevertheless, its duty to look to the Court for instruction. It is equally the duty of the Judge to give that instruction. If the jury fails to heed the charge of the Judge, and find the prisoner guilty, the Court is authorized to grant a new trial. If the jury fail 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.
When it is said that the jury is the judge of the fact and the law, it is not meant that the jury may make law any more than It may make fact. It is to look to the evidence for the one and to the organ of the law for the other. ‘
Upon the other points made, there is no difficulty; the weight of evidence was against the prisoner and the verdict right. The rule nisi was properly refused. In so clear a case, it is better for both the State and the prisoner that the contest be ended without delay.
Judgment affirmed.