whipped him for coming in and sheltering himself from the storm; that he turned him loose, telling Rodgers that he had no right to whip him; that he turned the boy loose by consent of Rodgers, who said he did not wish to have the boy dealt with by law, but would give him a few stripes. The jury found the defendant guilty. A motion was made for a new trial, upon the following grounds, to wit: 1st. Because the court erred in charging the jury that they could find defendant guilty, notwithstanding the person claimed to have escaped had never been prosecuted. 2d. Because the court erred in charging that the jury were, in no sense, judges of the law, but must receive the law as given from the court as law. 3d. Because the court erred in charging that they were not judges of the fact as to whether the custody of the escaped person was legal or not under the circumstances. 4th. Because the court erred in charging that the custody was legal if the evidence adduced for the State was true. 5th. Because the court erred in charging that it was the exclusive judge of the question as to whether the custody was legal or not in this case, under the circumstances and facts disclosed. 6th. Because the court refused to charge that if the jury believed from the evidence that the holding of the boy was for an unreasonable time after his arrest, then the custody was not legal, and they must acquit. 7th. Because the court erred in charging that the jury could not consider the fact that the boy was being cruelly treated at the time he was released. 8th. Because the court erred in refusing to charge that if the jury believed that Rodgers, who had the boy in custody, told the defendant to turn him loose, then they could not find the defendant guilty. 9th. Because the court erred in refusing to charge that the jury could not find the defendant guilty unless they believed from the evidence that he knew the boy was held for a criminal offense. 10th. Because the court erred in charging the jury that, in making up their verdict, they could not consider the question whether the boy had or had not been guilty of a criminal offense; but that if the boy was in custody of Rodgers, as the evidence of the State disclosed, although he may have been perfectly innocent of any burglary, still, if the jury believed the evidence for the State, they must find the defendant guilty. The motion was overruled and the defendant excepted. A. R. Lamar, Solicitor-General, by W. G. Charlton, for the State. BLECKLEY, J. 1. Logically considered, the trial of a criminal case is an effort to complete a final syllogism, having for one premise, matter of law; for the other, matter of fact; and for the conclusion, the resulting proposition of guilty or not guilty. It is the duty of the judge to supply the jury with material for the major premise of this syllogism; and it is the duty of the jury to collect from the evidence the minor premise, compare the two, draw the conclusion, and declare it in their verdict. Inasmuch as it is possible for the judge to mistake the law or misrepresent it, the material which he supplies or some part of it, may be erroneous. Are the jury, nevertheless, to accept it as correct, or is it subject to their revision and correction? May they, if they think it faulty, reject it, and substitute in its place something corresponding to their own convictions of what the law really is? Are the scriptures of the law an open bible; or must they be read for the laity by the priesthood of the bench? The power of overruling the judge's charge, apparently conceded to the jury by this court in most of the cases,1 prior to Brown's Case,2 is in the latter denied; and, by several later adjudications, the doctrine of Brown's Case, has become the established rule of decision.3 It is, perhaps, too late for a single member of the court to urge his individual conviction that Brown's Case was an "innovation." The learned judge who delivered the opinion of the court in that and in some of the subsequent cases cited above, has declared that it was not an innovation, that it was opposed to previous dicta only, not to previous decisions. He thought the true principle of the former cases was preserved. Acquiescence in that view would, probably, at this late day, be the better line of judicial conduct for any of his successors who might be of a different opinion. The now current holding is, in effect, that, to the jury, the highest and best evidence of what the law is, is the charge of the court; indeed, that their own final access to the law is through this charge. And it is maintained that, in order to judge of the law, it is in no wise necessary that the jury should be invested with power to revise the charge and correct it. As the judge is the organ of the law itself, through whom is made known to the jury what the law is, they are to receive it as he lays it down, and not discredit him as a legal authority. In judging the law they are to pass upon what it is in the charge, not upon what it is out of the charge; and coming thus to an understanding of it, are to determine what is its right and proper application to the facts in evidence, and what conclusion 1 See Hopkins' Annotated Penal Laws, sec. 1602. Reported in 40 Ga. 689. 3 See 41 Ga. 217; 49 Ibid. 485; 52 Ibid. 82, 290, 607. results from combini, the two elements of law and fact. When the jury hear the charge, understand what it means, and apply it to the facts before them, they have judged of the law which the charge contains; and, as they have no proper access to any different law, there is, for them, no different law on the subject, and they can not correct the errors of the judge if they would. Relatively to the jury, the charge stands like a volume of law published by authority-the only volume so published of which they know the contents. But none of the cases hold, or even hint, that the jury are in no sense judges of the law. If to judge the law and to follow the charge be incompatible, that is, if to accept the law as registered in the charge; be a surrender of the right to judge of it, then the theory that the charge is binding must be abandoned, for the statute expressly declares that the jury shall be judges of the law as well as of the fact.1 If we must give up one or other of the two things, it is in vain to hesitate; the right to judge must be preserved, and the duty of conforming to the charge be no longer exacted. We have seen, however, that the two branches of the rule are believed to be reconcilable; that is, that the jury may be judges of the law without having the right to contradict the court or to reject what is delivered as law from the bench. No tribunal whatever is at liberty to refuse to recognize as law what comes to it duly vouched as such by the highest instrumentality appointed by the law to give it assurance. If otherwise, a court, in judging of the law contained in the Constitution of the United Staies, might deny the contents to be law, instead of merely finding out the true meaning of the instrument and applying that meaning to the case in hand. 2. In the foregoing presentation of the relative functions of judge and jury, the subject has been contemplated in its widest range, as embracing an entire case; bnt the like principle of separation between the province of the judge and that of the jury is to be observed in dealing with any given subdivision of the case. Thus, an essential part of the offense before us is the custody alleged to have been violated. Was it a legal or an illegal custody? How are the two classes to be distinguished? By certain variations in the attendant circumstances. What circumstances will bring this particular custody within the class legal, and what will bring it within the class illegal, are questions of law; but the actual presence or absence of one set of circumstances or the other, in the particular instance, is matter of fact. Legal custody or illegal custody is, therefore, a conclusion consisting of law and fact blended; just as guilty or not guilty is a conclusion composed of the like elements. As both conclusions are of the same nature, the processes of 1 Code, sec. 4646. arriving at them are similar. The law element is the material for the major premise in a special syllogism touching custody, and is to be supplied by the judge. The jury are to collect from the evidence the minor premise, compared the two, and draw the conclusions of legal custody or illegal custody. As the judge can decide no question of fact, he is not permitted to declare whether the particular custody disclosed by the evidence belongs to the one class or to the other. He, as the organ of law, can carry his voice no farther than the law goes. He can say, as the law does, that such and such custody is legal, and such and such illegal; but he can not say that this particular custody was such or such, for that depends not on the law, but on the evidence. Of course, too, the bare fact of whether there was any custody at all, is, also, for the jury, unless it is admitted. 3-8. The remaining points are distinctly ruled in the head-notes, and will be fully understood when read in the light of the reporter's statement. Judgment reversed. ESCAPE-CONVEYING TO PRISONER ANY INSTRUMENT, ETC., CALCULATED TO AID HIS ESCAPE. HUGHES v. STATE. [6 Ark. 132.] In the Supreme Court of Arkansas, 1845. A Statute punishing the Conveying to any person lawfully imprisoned, any instru. ment, arms or other thing calculated to aid his escape is intended to prohibit any substantial thing which might be used or handled by him in facilitating or effecting his escape, and does not cover a letter informing the prisoner that he has a friend and can be released from confinement. ERROR to the Circuit Court of Pulaski County. This was an indictment against George W. Hughes for attempting to aid the escape of a prisoner from the penitentiary, determined in the Circuit Court of Pulaski County, at the May term, 1844, before the Hon. J. J. CLENDENIN, one of the circuit judges. The indictment charged that: "Hughes, on the 30th day of March, 1844, conveyed into the jail and penitentiary house of this State, a certain instrument of writing, being a thing proper and useful to aid one John Pence, a prisoner confined therein, to escape, with the intent thereby to facilitate the escape of the said Pence, who before that time, had been convicted of a felony, and lawfully sentenced to undergo confinement in said jail and peniten tiary house, and was then, in pursuance of such conviction and sentence, lawfully confined and detained therein, contrary," etc. To which the defendant pleaded not guilty; the case was submitted to a jury, who found him guilty, awarded him one year's imprisonment, and assessed a fine upon him of one hundred dollars. The judgment of the court was rendered accordingly. The defendant moved for a new trial, on the ground that the verdict was against law and evidence, and in arrest of judgment, on the ground that the indictment set forth no offense against the statute, and was insufficient in law. Both of which motions the court overruled, and the defendant excepted. From his bill of exceptions it appears: The State proved, by James McVicar, that Hughes was an underkeeper in the penitentiary - had been faithful in the discharge of his duty, until the above offense was charged to him. He kept the key of Pence's cell. About the last of March, 1844, witness found in the cell of Pence, rolled together and sewed up in a feather pillow, two papers written upon with pencil, the following of which he believed to be the handwriting of Hughes, viz. : "Know O friend on expected know note fear note tell not ceap dark and be as secret as the Gloomy tombstone and you can be relieved of your unhappy situation. this is a nuff for you to know at present. A friend is hard to find no I her is paper and pensil put down your notions about this without eny fear yours, etc. (Eye)" - (on the back) "destroy this as soon as the contents is got never let any one know what is within." Witness was the agent of the penitentiary, was familiar with the handwriting of Hughes, and knew the above paper to be in his handwriting from the character of the writing and spelling. W. C. Stevenson, an inspector of the penitentiary, stated that he presented the above paper to Hughes and asked him if he had ever sent it. Hughes appeared much excited-replied that he could not tell till he examined it— took the paper, read it, and returned it. Witness was afraid from the manner in which he handled it that he would tear it, and let it go himself when Hughes took hold of it, lest it should be torn. There were other witnesses examined, and a number of little circumstances shown, which had some bearing on the case, but the view which this court have taken of the case, renders it unnecessary to set out the evidence more fully. The defendant appealed to this court, and assigns as errors - that the court below erred in overruling his motion in arrest of judgment, and for a new trial, etc. OLDHAM, J., delivered the opinion of the court. This was a proceed |