delivered the following dissenting opinion :
I am unable to assent to the views expressed in the case of Good v. State, or apply them in this case, though I concede, if the law was not clear that requires the opposite, this would be a proper case for its application. My reasons are shortly as follows:
Before the passage of the act of 1877, ch. 85, sec. 1, the rule had been settled by the court in more than one case, that the law must be charged in a case-of homicide, on all the grades involved in the indictment.
In the case of Poole & Mahaffey v. The State, 2 Baxt., 294-5, Judge Turney delivering the opinion of the court: “ It is also the duty of the court to define in his charge all the offenses included in the *186indictment for this crime. The jury is the exclusive ■ judge of the facts, the court is a witness to it of the law. When the jury has heard the facts it is for it to say what offense, if any, has been committed against the law. However plain it may be- to the mind of the court, that one certain offense has been committed and none other, he must not confine himself in his charge to that offense. However clear it may. be, the court should never decide the facts, but must leave-them unembarrassed to the jury.”
He then goes on to explain the qualification of the rule, that is, the court is to charge “ on the case made by the facts,” and that this only applies to incidental questions arising on the trial, and says it was-never meant that the court “should be excused from defining the offenses averred or embraced in the indictment.” •
The same rule was laid down by Judge McFarland in Little’s case, 6 Baxt., 494. He says: “We think the judge erred in declining to instruct the jury as to the law of manslaughter, the record shows the judge told the jury that he intentionally omitted to charge them upon this question. We have held this-error, after full consideration, in recent cases. This is in effect to tell the jury that if the prisoner is guilty at all, in the .opinion of the court, his crime cannot fall below murder in the second degree. We think this invading the province of the jury.” Citing Poole & Mahaffey v. The State.
This might not have been the better rule, but we so held. There had been, probably, some variation' *187iii the strict application of the rale, though I remember none, but it was, I know, most earnestly com-batted by Attorney-General Heiskell. In 1877 the Legislature passed the act of 1877, as follows: “Be it enacted by the general assembly of the State of Tennessee, that it shall be the duty of all the judges of' the State charging juries in cases of criminal prosecutions for any felony, wherein two or more grades or classes of offense may be included in the indictment,, to charge the jury as to all of the law of each offense included in the indictment without any request on the-part of the defendant so to do.”
It is clear, as I think, the intent was to extend the rule to all cases of felony, the court not having applied it except in cases of homicide as in the cases-cited. Be this as it may, the l;iw is the mandate of the Legislature, and imperative. I might concede the rule had been carried too far by our decisions cited,, which were made before the act of 1877, and he ready to qualify them in a clear case like the present. But I cannot qualify the mandate of the Legislature in terms so plain as not to be misunderstood. It is the-judges “shall charge” in such “cases as to all of the-law of each offense included in the indictment without any request on the part of the defendant so to do.”'
The rule given in Good’s case is, that the charge-shall be only as to the law as raised, in the judgment of the court by the fads on the evidence you-have, but to state the two propositions to see ■ that one is the opposite of the other. I would be willing-to modify the rule as laid down by this court, because *188I think we could safely apply it in proper cases where we could see' the prisoner had been injured by failure of the judge to charge the law as applicable to his case. But I cannot modify a statute of the State. It is an unbending thing, and if in accord with the Constitution imperative, and admits of no •evasion.
The Good case on its facts may not be a very •great departure from, the statute, as the indictment was for robbery, the bill of exceptions not containing the evidence, but an “agreement conceding the evidence was amply sufficient to warrant the jury in finding the prisoner guilty of the aggravated robbery as •charged.” The appeal was taken solely to reverse, because notwithstanding this, the court had failed to •charge as to the offense of an attempt to commit a robbery. Let the case stand, if need be, for precisely such a case, as was then before the court, but to go any further is to repeal the statute of the Legislature. If the law in cases of homicide was as stated before the Legislature made it imperative and extended it to all felonies, I can see no reason why the rule shall be changed because the Legislature has so enacted.
Whatever we may think of the practicability of the rule, it is certainly in accord with the theory of our Constitution and law, that the judge decides the law, the jury the facts, as said by Judges McFarland and Turney in the opinions I have cited, “no matter how •clear this may have been to the judge, it was a question for the jury. If he could decide this in one case, *189he' could in all cases.” I confess it is difficult to-find an answer to the meaning. Be this as it may, there is certainly none to the word of the statute, and by this I am bound. If bad policy, the remedy is for the Legislature, not this court.
For these reasons I think the rule in the Good’ case is not the law, and certainly should not be applied to a case of homicide, nor should the judges be allowed to refuse to obey the statute of 1877.