delivered the opinion of the Court:
The charge was excepted to by counsel for defendant as *384amounting to a peremptory instruction to find defendant guilty. In the Federal courts, in both civil and criminal cases, the trial judge may express his opinion in respect of the testimony, and it will not be error so long as he cautions the jury not to feel obliged to be bound by or to follow his suggestions. In Simmons v. United States, 142 U. S. 148, 155, 35 L. ed. 968, 971, 12 Sup. Ct. Rep. 171, the court, considering the limitations upon a trial judge in expressing his opinion of the evidence to the jury, said: “The only other exception argued is to the statement made by the judge to the second jury, in denying their request to be discharged without having agreed -upon a verdict, that he regarded the testimony as convincing. But at the outset of his charge he told them, in so many words, that the facts were to be decided by the jury, and not by the court. And it is so well settled, by a long series of decisions of this court, that the judge presiding at a trial, civil or criminal, in any court of the United States, is authorized, whenever he thinks it will assist the jury in arriving at a just conclusion, to express to them his opinion upon the questions of fact which he submits to théir determination, that it is only necessary to refer to two or three recent cases in which the judge’s opinion on matters of fact was quite as plainly and strongly expressed to the jury as in the case at bar. Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 30 L. ed. 257, 7 Sup. Ct. Rep. 1; United States v. Philadelphia & R. R. Co. 123 U. S. 113, 31 L. ed. 138, 8 Sup. Ct. Rep. 77; Lovejoy v. United States, 128 U. S. 171, 32 L. ed. 389, 9 Sup. Ct. Rep. 57.”
In the present case, the trial justice made it clear that the jurors are the sole judges of fact; that he had no power to peremptorily instruct a verdict of guilty, and that, notwithstanding any opinion he might express, the ultimate decision of guilt or innocence resided in the jury. But the foregoing charge must be read in the light of the case before us. It would hardly be contended that the charge could be upheld in a case where there was a material issue of fact for the jury to pass upon, or in the present case had defendant elected to refuse to testify, as was his right, and rely upon the presumptions which *385tlie law would thereby raise for his protection. But he waived even this right and unqualifiedly admitted every charge made against him, apparently relying upon the dereliction of the jury for relief. It is in this particular that the case of Masters v. United States, 42 App. D. C. 350, Ann. Cas. 1916A, 1243, relied upon chiefly by counsel for defendant, differs from the present case. We held in that case that error was committed in refusing to admit certain testimony, which, if admitted, would have presented a sharp issue of fact for the jury. Here, it is conceded there is no issue of fact; and the present decision, it must be remembered, rests solely upon that unique situation.
How far may a defendant rely upon the exercise of arbitrary power by a jury and complain if the jury disappoints his expectations? Defendant’s guilt was admitted. There was no fact left in dispute. The duty of the jury was to find him guilty. They had the arbitrary power, but not the right, to return a verdict of not guilty. In Sparf v. United States, 156 U. S. 51, 39 L. ed. 343, 15 Sup. Ct. Rep. 273, 10 Am. Crim. Rep. 168, the defendants were charged with the crime of murder in the first degree. The court instructed the jury that there was nothing in the evidence to reduce the crime, if one was committed, below the grade of murder. This was assigned as error, on the ground that the court had invaded the province of the jury. Section 1035, Revised Statutes of the United States, Comp. Stat. 1916, § 1701, among other things, provides that “in all criminal causes the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense so charged: Provided, That such attempt be itself a separate offense.” Commenting upon the charge in view of this provision of the statute, the court said: “The court below assumed, and correctly, that sec. 1035 of the Revised Statutes did not authorize a jury in a criminal case to find the defendant guilty of a less offense than the one charged, unless the evidence justified them in so doing. Congress,did not intend to invest juries in cri-mi*386nal cases with power arbitrarily to disregard the evidence and the principles of law applicable to the case on trial. The only-object of that section was to enable the jury, in case the defendant was' not shown to be guilty of the particular crime charged, and if the evidence permitted them to do so, to find him guilty of a lesser offense necessarily included in the one charged, or of the offense of attempting to commit the one charged. Upon a careful scrutiny of the evidence, we cannot find any ground whatever upon which the jury could properly have reached the conclusion that the defendant ITansen was only guilty of an offense included in the one charged, or of a mere attempt to commit the offense charged. A verdict of guilty of an offense less than the one charged would have been in flagrant disregard of all the proof, and in violation by the jury of their obligation to render a true verdict. There was an entire absence of evidence upon which to rest a verdict of guilty of manslaughter or of simple assault. A verdict of that kind would have been the exercise by the jury of the power to commute the punishment for an offense actually committed, and thus impose a punishment different from that prescribed by law.”
There was no lawful power vested in the jury to acquit defendant. In convicting him, no right of his-was violated, since he had no right to an acquittal. The right of trial by jury-guaranteed by the Constitution is the right to a lawful trial where the jury is governed in its deliberations by the law as given by the court. Every general verdict is compounded both of law and fact, — the law as given by the court, and the facts as adduced from the witness stand. The jury has the physical power to disregard both, but not the moral right. In the absence of any issue of fact, as here, only a question of law remains; and while the jury has the arbitrary power to disregard it, one failing to profit by such a disregard of duty is not in position to complain. “Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not' by the law as a jury may understand it, or choose, from wantonness or ignorance or accidental *387mistake, to interpret it.” United States v. Battiste, 2 Sumn. 240, Fed. Cas. No. 14,545.
The right guaranteed the citizen is to be tried according to the fixed law of the land, and not according to the mere guess of a jury in the exercise of purely arbitrary power. If denied the former, he has suffered an injury from which the law will grant relief; if granted the latter, he is the recipient of a gross miscarriage of justice; hut, if denied it, he has been deprived of no legal or constitutional right of which he may he heard to complain.
The court, in charging the jury that a failure to return a verdict of guilty could he due only to “a wilful and flagrant disregard of the evidence and the law * * * , and a violation of their obligation as jurors,” stated the truth, and at the same time the law of this case. It is clear that, unless the jury violated their obligations as pointed out by the court, they could not acquit the defendant. The jury, however, was not devested of the freedom to exercise arbitrary power. On the contrary, it was expressly told that it possessed that power. Hence, in order that we may reverse the case, it must appear not only that the jury was not permitted to exercise arbitrary power and “disregard the evidence and the principles of law applicable to the case,” or that some other right of defendant lias been infringed. The record fails to disclose either. It is not apparent, therefore, that any error prejudicial to defendant was committed.
The judgment is affirmed, with costs.
A writ of certiorari was received from the Supreme Court of the United States on April 24, 1919.