dissenting:
I can not concur in the foregoing opinion. After a careful examination of the proofs, I am clearly of the opinion that the conviction is not warranted by the evidence. I can not see hoAV an impartial jury, properly instructed, could possibly say that this evidence shows, beyond a reasonable doubt, that the accused shot Robertson deliberately and intentionally. It seems to me the weight of the evidence is that he did not. Plainly the proof does not relieve that question of reasonable doubt.
I think the accused ought to have been allowed to proA7e that the loons in quo Avas not a public road. Witnesses for the prosecution had spoken of the place as in a public road. It may be that to prevent a mere trespass upon property will not justify taking human life—but malice is attributed to the accused by the prosecution upon the ground that he took Avith him a loaded fire-arm and used it. The circumstances Avhich led to the taking such a Aveapon upon the ground sheds light upon the motive, and the motive has much to do Avith the question as to Avhether the discharge of the pistol was or Avas not accidental. The theory of the defense Avas, that the pistol was taken there for the mere purpose of preventing the destruction of property by intimidation. If there Avas no public road, Davison had a right to protect his property by intimidation. If it was in the public road, he had no such right and was in the wrong throughout. It was important for him to show, not only that he claimed there was no road there, but that he made that claim in good faith; and what could show his good faith in this belief so fully as to prove that what he claimed was true in fact?
It also seems to me that the accused had the right, on cross-examination of the witness Beese, to show the antagonism of the witness to the accused, by showing what he had said upon former occasions to the commissioners in relation to this road controversy. It is true, a witness may be asked directly as to his feelings of hostility to the party against whom he testifies; but the party is not confined to that mode of proof. Generally, that mode of examination sheds but little light on the subject. Much the most reliable evidence of the feelings of a witness consist in proofs of what he has said and done.
I think this conviction ought to be reversed because of the giving of the tenth instruction. By it the jury were told that they must accept the law as laid down by the court, unless they can swear “that they are better judges of the law than the court.” The statute of Illinois says, “ Juries, in all criminal cases, shall be judges of the law and fact.” The instruction, in my judgment, nullifies the statute. It says, in substance, to the juror, “Although you may conscientiously think and believe that the true rule of law on some material point is different from that laid down by the court: still you must lay aside your duty to judge what the law is, (a duty imposed upon you by the statute and by the juror’s oath which you have taken,) and must obey that which you think is wrong, unless you are so sure you are right that you can swear that the judge of the court is wrong.” In fact, the fair meaning of the language of this instruction goes farther than this—it says, in substance, “You must not undertake to judge of the law, as against what the court has charged, unless you are prepared to swear, not only that the judge is wrong on the point in question, but you must also be prepared to swear generally that you are a better judge of the law than the court.” This can not be the law while this statute stands upon the statute book. Before any juror could meet this condition, he must be able to swear as to what is in another man’s mind. Before he can compare the ability of his own mind with that of another, he must know so well what ability the judge has that he can swear to it. This is unreasonable. The statute contains no such qualification. Its provision, that juries, in such cases, shall be judges of the law, is coupled with no such conditions. What would be thought of a statute which should say “juries, in all criminal cases, shall be judges of the law whenever they can say, upon their oaths, that they are better judges of the law than the court.” It would be regarded as preposterous; and yet this is that to which this statute is reduced by this instruction.
It is undoubtedly true that jurors, in criminal cases, although made by statute judges of the law, should receive with much consideration what the court may say to them as to the law, and should accept it as a guide, except in so far as in their judgment such advice seems to them to be wrong.
The wisdom of this statute may seem to be questionable; but cogent reasons might be suggested in support of its propriety. However this may be, it is a valid statute, in full force. Courts as well as parties must be controlled by the law. It is the business of courts, under our constitution, to declare what the law is; and it is no part of the duty of' a court to make that law which is not law, and no court, high or low, is warranted in trampling under foot a plain and valid statute, merely because the wisdom of its provisions may not be consonant with the views of the court. A prevailing sense of the sanctity of the law is the fortress by which the power of courts is to be protected. When courts rebel against the law, with what grace can they punish offenders for its violation ?
I am aware that such an instruction has heretofore been sanctioned by this court, and it is not strange that the circuit court should not have felt at liberty to refuse to give the same, but to my mind it is so plainly in violation of the statute that I think the former rulings on this question ought to be overruled. Ho vested rights have arisen. I, for one, can never give my sanction to such a proposition.