Separate and dissenting opinion of
Walker, J.In this case the court below instructed the jury that it was the province of the court to expound the law, and it was for the jury to receive the law thus given them, and apply it to the facts of the case. And that the jury have no right to say that the rules announced as law by the court are not such, and that in forming their verdict they must be governed by it as given in the instructions. And that the court gave the proper construction to the latter clause of the 188th section of the chapter entitled “ Criminal Jurisprudence,” R. S., which is this: “ Juries in all cases shall be judges of the law and the fact;” I am fully satisfied. In the case of Schnier v. The People, (ante, p. 17,) the majority of the court held that the jury were the uncontrolled judges of both the law and the facts, under this provision. And that they were not bound to receive the law as announced by the judge; and the majority of the court in this case adopt, and apply the same construction. Having then dissented to that construction, and still entertaining the same views, I shall proceed, as far as my limited time and opportunity will permit, to give my reasons for dissenting from the opinion of the court.
In determining what was the intention of the legislature in adopting this provision, it may be proper to refer to the history of criminal jurisprudence, in the country from which we have adopted, with modifications, our criminal code. And when it is remembered that in former times juries were required to find special verdicts, leaving the courts to determine whether under the facts found by the jury, the law when applied to the facts, would hpld the defendant guilty of the crime charged, we can see a controlling reason for the enactment of some provision by which courts should be effectually precluded from the exercise of a power so liable to abuse, and dangerous to the liberty of the citizen. It was, in its day, justly claimed that the exercise of such a power virtually deprived the accused of the benefit of trial by jury, which right, by the English subject and the American citizen, has at all times been guarded with jealous care.
Under the construction given this provision by the court, it can hardly be that it is intended to adhere to the literal meaning of the language of the law. If so, then it must inevitably follow, that on every question of the admissibility of evidence, the qualification of a juror, the constitutionality of the law creating the crime, as well as the true construction of the act creating the offense, may be considered and passed upon by the jury, in making their verdict. After they have retired to their room, they would, under such a construction, have the right to review the decisions of the court in admitting evidence, and exclude from their consideration such portions as they supposed were illegally before them. They would also have the right to determine whether the law creating the offense was warranted by the constitution. They could place upon the act creating the offense, any construction they might choose, and all this in direct opposition to the instructions of the court, based upon well-settled principles of criminal jurisprudence, received, acted upon and approved, by the wisest and best judges of all ages. Can it be possible that the legislature ever intended to confide to twelve men, who have never perhaps even read the criminal code of our State, unacquainted with the law of evidence and the rules of construction, and uninformed as to the whole theory of criminal jurisprudence, such absolute power over the life and liberty of the citizen ? I am constrained, from the great care manifested by the legislature for security to the life and liberty of the. citizen, to believe that such was not its intention. Such a doctrine, it strikes my mind, would inevitably lead to the unsettling of all criminal law. If the jurors are the uncontrolled judges of what it is, and their finding in a particular case settles the law of that crime, is a jury in a subsequent case to be governed by it, or may they disregard it, or, if bound by it, who can know and conform his actions to it ? Or if, on the contrary, every jury may settle the law for themselves, give a construction to the statute, and either acquit or convict upon the construction thus given, in defiance of the decision of the highest judicial tribunal known to the law and the instructions of the circuit judge, or even in the teeth of the statute itself, no one can, by any possibility, know what the law is until the jury have announced it by the decision of the case. And while I may concede all that is claimed for the trial by jury, I am irresistibly impelled to conclude that such an uncontrolled power, placed in the hands of twelve men, uninformed even in the elementary principles of the law, is fraught with dangers, and is liable to abuse, however honest their purpose, to an extent equal to all its benefits.
The statute has not given any review by this court (until very recently), of the finding of the jury upon the facts in a criminal prosecution. Until then, even as against the accused, appellate courts have not looked into the evidence, but have confined their inquiries to the law as expounded by the court. Nor is there any provision which authorizes this court to review the decision of the law made by the jury. And if the jury may disregard the instructions of the court, how can we say that a wrong instruction contributed in the slightest degree to the result at which they arrived ? They may, for anything we can presume, have disregarded it, and determined the law correctly. And if they are the uncontrolled judges of the law, and the legislature has made them such, we should presume that they knew the law and acted upon it. If the legislature intended that they should be such judges, they must have supposed that they were competent and qualified to decide all legal questions arising in the progress of the trial. But if it were admitted that the jury are the judges of the law, and may disregard the instructions of the court, in its practical application, what is to be its effect ? Is the majority of the jury, like the majority of the members of a court, to determine the law, or must they, as in the finding of facts, unanimously agree ? May one of the jurors, who differs with the others, refuse to concur in the construction of the law, given by the eleven other jurors and the judge, defeat justice, from his mere whim or caprice, and prevent an acquittal or a conviction? Such, I conceive, never could have been the design of the legislature, by this enactment. So far as my observation and experience has extended, such has not been the practice of courts, or the understanding of the profession. In this case the court had fully, clearly and unmistakably instructed the jury, that they were the judges of the law and fact, and that if he instructed contrary to the law it would be error, and the instruction complained of was given in answer to specific questions, propounded by the jury, as to whether, they had the right to go behind the instructions and see if they were in conflict with the Bible, and whether they had the right to read medical books to see whether the physicians testified correctly, and to examine law books to ascertain whether evidence was properly admitted. To these inquiries this instruction was designed as an answer. And the jury must have so regarded it, when it was given. They had asked no question that related to the commission of the act itself, or what it required under the statute to constitute the crime. We may safely infer that on that question they had no difficulty, and unless they are to be the jndges of all questions of law arising on the trial, I think they could not have been misled by this instruction.
I am constrained to come to the conclusion, (and I do it with hesitation, when my learned brethren, for whose more extensive and enlarged experience than my own, I have the highest respect,) that the true construction of this provision requires the jury to receive and act upon the law as announced to them by the court. When it is thus given, the duty is theirs to judge of that law, and determine whether, when applied to the facts proven and found by them in the case, the accused is guilty or innocent. This removes, as it should, from the judge all right to find the facts, but leaves him responsible for'the determination of the law creating the crime charged, the application of the law of evidence offered to establish the crime charged, and the jury responsible for the proper application of the evidence thus admitted, and the law thus announced to them. They are thus made the judges of the law and facts of the case. If they misapply it to the facts, and a conviction follows, the Circuit Court may grant a new trial, or, if refused, it may be corrected in this court, and if the judge errs in giving instructions, either as to the law, or so as the jury may have been misled, the correction may be had, as we would then presume the jury had acted upon and been governed by the law as announced by the court. This construction frees the administration of criminal justice from all difficulty. It leaves the judge and jury severally responsible for their acts in the trial of the cause, and enables us to see where the error was committed, and to apply the correction.
The statute, in defining voluntary manslaughter, has required that the provocation, to be produced by the infliction of, or an attempt to commit, a serious bodily injury, must exist, in order to reduce the offense from murder to manslaughter, and I think that the defendant’s fourth instruction was, therefore, properly refused, as there is no evidence of such an injury inflicted or attempted upon the accused. I am not prepared to hold that the judgment of conviction should not be reversed for the remarks of the judge on the trial, but can perceive no other reason for reversing a conviction which I, in other respects, regard as fair.
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