On Petition for a Rehearing.
Niblack, C. J.The appellant complains that the circuit court erred in modifying instruction No. 6, and in refusing to give instruction No. 8, asked by him respectively at the trial, and that we failed to cpnsider the questions arising upon those instructions at the former hearing of this appeal. This failure on our part was a mere inadvertence, resulting from the voluminous character of the record, as well as of the brief filed on behalf of the appellant.
Instruction No. 8, asked as above, was as follows: “In this case you are the sole judges of the law, and your right *477to determine the law of the case for yourselves, goes to this extent that, even if all the facts alleged in the indictment are established by the evidence beyond a reasonable doubt, you have still the right to determine whether or not such facts, when so established, constitute a public offence under the laws of this state, and if you determine that they do not, you have the right to acquit the defendant. You are not bound by the instructions given by the court as to the law, but are at liberty to disregard such instructions if you see fit to do so, and determine the law for yourselves.”
This instruction invoked, in any event, a too extreme construction of section 19 of the Bill of Rights which declares that, “ In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” This provision evidently means that the jury have the right to determine all questions of law applicable to such matters as they are required to consider in making up their verdict, but can not be rightfully construed to mean that the jury are the sole judges of the law in every respect in a criminal cause. The court judges of the sufficiency of an indictment under the law. It decides all questions of law arising upon the admissibility of evidence, and has the power to grant a new trial when the jury have erroneously determined the law injuriously to the defendant. The judge, too, is required to instruct the jury upon all matters of law necessary for their information in the rendition of a verdict in a criminal cause. Thus instructing the jury involves, in a qualified sense at least, the exercise of a judgment upon all matters of law concerning which the judge must give information to the jury.
The jury are, consequently, not, strictly speaking, the sole judges of the law in all its relations to a criminal case. Then, too, the instruction in question came too near carrying with it the intimation that the jury have the right in their mere discretion to disregard all law in reaching a verdict in a criminal prosecution. This they have the potoer to do in many cases, but have no legal or moral right to do under the Con*478stitution, or otherwise. The kind of right, referred to in the Bill of Rights is defined by Webster in his dictionary to be a “ privilege or immunity granted by authority.” In a more comprehensive sense it may be said to be “ a privilege or immunity recognized or conferred by competent authority.” It is the duty of the jury to avail themselves of all the opportunities which may be afforded them to ascertain what the law governing the case before them is, and it is their right, after hearing all that may be properly said on the subject, to determine what the law in that respect ought to be held to be, and to decide accordingly, but this does not place the jury above the law, or confer upon them the lawful right to decide simply as they “see fit,” regardless of all law, as it has been recognized or established by the proper tribunals. The judgment in the case of Hudelson v. State, 94 Ind. 426 (48 Am. R. 171), was reversed because one of the instructions given in the cause was esteemed to have been -too mandatory in its structure, and hence to have trenched too much upon the province of the jury. The doctrine of that case does not sustain the instruction refused in this case in all of its essential features, as claimed by counsel, and we think that case carries the right of the jury to determine the law in a criminal case to its extreme limit, in a practical point of view. We are, therefore, of the opinion that the circuit court did not err in refusing to give instruction No. 8 hereinabove set out.
The concluding part of instruction No. 6, asked by the appellant and given in a modified form, contained a more condensed, but substantially similar, statement of the law, to that embraced in instruction No. 8, except that it did not assert that the jury were the sole judges of the law in a criminal case, and the modification complained of consisted in the striking out the concluding part of the instruction.
The fifth clause of section 1823, R. S. 1881, after providing that the judge shall in a criminal case state to the jury all the matters of law necessary for their information, concludes as follows : “ If he present the facts of the case, he *479must inform the jury that they are the exclusive judges of all questions of fact, and that they have a right also to determine the law.”
Filed March 13, 1886.Instruction No. 5, given to the jury by the circuit court, upon its own motion, in this case was in these words: “You are exclusive judges of all questions of fact, and you have-the right, also, to determine the law.”
This instruction was a substantial affirmation of the Bill of Eights as well as a sufficient compliance with the provision of the statute lastly above set out on the subjects to which, it related, and while the circuit court might, in its discretion,, have given further and more elaborate instructions on either-one or both of these subjects, it was not error to refuse to do-so, and it was better, perhaps, not to attempt to do so.
Other grounds are suggested as reasons for a rehearing, but. these suggestions relate to questions which were considered with care at the former hearing, and upon which we regard: it as unnecessary to enter into a formal review.
The petition for a rehearing is overruled.
Zollars, J., was absent.