Opinion of the Court. particular issue in a cause, but it is so meagre as not, in law, to justify a verdict in favor of the party producing it, the court is in the line of duty when it so declares to the jury. Pleasants v. Fant, 22 Wall. 116, 121; Montclair v. Dana, 107 U. S. 162; Randall v. Baltimore & Ohio Railroad, 109 U. S. 478, 482; Schofield v. Chicago & St. Paul Railway, 114 U. S. 615, 619; Marshall v. Hubbard, 117 U. S. 415, 419; Meehan v. Valentine, 145 U. S. 611, 625. The cases just cited were, it is true, of a civil nature; but the rules they announce are, with few exceptions, applicable to criminal causes, and indicate the true test for determining the respective functions of court and jury. Who can doubt, for instance, that the court has the right even in a capital case to instruct the jury as matter of law to return a verdict. of acquittal on the evidence adduced by the prosecution. Could it be said, in view of the established principles of criminal law, that such an instruction entrenched upon the province of the jury to determine from the evidence whether the accused was guilty or not guilty of the offence charged, or of some lesser offence included in the one charged? Under a given state of facts, outlined in an instruction to the jury, certain legal presumptions may arise. May not the court tell the jury what those presumptions are, and should not the jury assume that they are told truly? If the court excludes evidence given in the hearing of the jury, and instructs them to disregard it altogether, is it not their duty to obey that instruction, whatever may be their view of the admissibility of such evidence? In Famous Smith v. United States, 151 U. S. 50, 55, which was an indictment for the murder, in the Indian Territory, of one Gentry, "a white man and not an Indian,” we said: "That Gentry was a white man, and not an Indian, was a fact which the government was bound to establish, and if it failed to introduce any evidence upon that point, defendant was entitled to an instruction to that effect. Without expressing any opinion as to the correctness of the legal propositions embodied in this charge, we think there was no testimony which authorized the court to submit to the jury the question whether Gentry was a white man and not an Indian. Opinion of the Court. The objection went to the jurisdiction of the court, and if no other reasonable inference could have been drawn from the evidence than that Gentry was an Indian, defendant was entitled, as matter of law, to an acquittal"-citing Pleasants v. Fant, 22 Wall. 116; County Commissioners v. Clark, 94 U. S. 278, and Marshall v. Hubbard, 117 U. S. 415. So, in this case, it was competent for the court to say to the jury that on account of the absence of all evidence tending to show that the defendants were guilty of manslaughter, they could not, consistently with law, return a verdict of guilty of that crime. Any other rule than that indicated in the above observations would bring confusion and uncertainty in the administration of the criminal law. Indeed, if a jury may rightfully disregard the direction of the court in matter of law, and determine for themselves what the law is in the particular case before them, it is difficult to perceive any legal ground upon which a verdict of conviction can be set aside by the court as being against law. If it be the function of the jury to decide the law as well as the facts if the function of the court be why should the court interfere only advisory as to the law for the protection of the accused against what it deems an error of the jury in matter of law. Public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as in their judgment were applicable to the particular case being tried. If because, generally speaking, it is the function of the jury to determine the guilt or innocence of the accused according to the evidence, of the truth or weight of which they are to judge, the court should be held bound to instruct them upon a point in respect to which there was no evidence whatever, or to forbear stating what the law is upon a given state of facts, the result would be that the enforcement of the law against criminals and the protection of Opinion of the Court. citizens against unjust and groundless prosecutions, would depend entirely upon juries uncontrolled by any settled, fixed, legal principles. And if it be true that jurors in a criminal case are under no legal obligation to take the law from the court, and may determine for themselves what the law is, it necessarily results that counsel for the accused may, of right, in the presence of both court and jury, contend that what the court declares to be the law applicable to the case in hand is not the law, and, in support of his contention, read to the jury the reports of adjudged cases and the views of elementary writers. Undoubtedly, in some jurisdictions, where juries in criminal cases have the right, in virtue of constitutional or statutory provisions, to decide both law and facts upon their own judgment as to what the law is, and as to what the facts are, it may be the privilege of counsel to read and discuss adjudged cases before the jury. And in a few jurisdictions, in which it is held that the court alone responds as to the law,. that practice is allowed in deference to long usage. But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. Under the contrary view Under the contrary view if it be held that the court may not authoritatively decide all questions of law arising in criminal cases the result will be that when a new trial in a criminal case is ordered, even by this court, the jury, upon such trial, may of right return a verdict based upon the assumption that what this court has adjudged to be law is not law. We cannot give our sanction to any rule that will lead to such a result. We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence. Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be. Under any other system, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumen - Opinion of the Court. talities devised for the protection equally of society and of individuals in their essential rights. When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our institutions. To instruct the jury in a criminal case that the defendant cannot properly be convicted of a crime less than that charged, or to refuse to instruct them in respect to the lesser offences that might, under some circumstances, be included in the one so charged there being no evidence whatever upon which any verdict could be properly returned except one of guilty or one of not guilty of the particular offence charged — is not error; for the instructing or refusing to instruct, under the circumstances named, rests upon legal principles or presumptions which it is the province of the court to declare for the guidance of the jury. In the case supposed the court is as clearly in the exercise of its legitimate functions, as it is when ruling that particular evidence offered is not competent, or that evidence once admitted shall be stricken out and not be considered by the jury, or when it withdraws from the jury all proof of confessions by the accused upon the ground that such confessions, not having been made freely and voluntarily, are inadmissible under the law as evidence against the accused. These views are sustained by a very great weight of authority in this country. In People v. Barry, 90 California, 41, which was a criminal prosecution for an assault with intent to commit robbery, the accused having been twice before convicted of petit larceny, it was held not to be error to refuse to instruct the jury that under the charge they might find him guilty of simple assault, because "the evidence tended to show that he was guilty of the crime charged or of no offence at all," and, therefore, "the instruction asked was not applicable to the facts of the case;" in People v. McNutt, 93 California, 658, the offence charged being an assault with a deadly weapon and with intent to commit murder, that an instruction that the jury might convict of a simple assault could have been properly refused, because "under the evidence he Opinion of the Court. was either guilty of an offence more serious than simple assault or he was not guilty;" in Clark v. Commonwealth, 123 Penn. St. 81, a case of murder, that the omission of an instruction on the law of voluntary manslaughter, and the power of the jury to find it, was not error, because the murder was deliberate murder, and "there was no evidence on which it could be reduced to a milder form of homicide;" in State v. Lane, 64 Missouri, 319, 324, which was an indictment for murder in the first degree, that "if the evidence makes out a case of murder in the first degree, and applies to that kind of killing, and no other, the court would commit no error in confining its instructions to that offence and refusing to instruct either as to murder in the second degree or manslaughter in any of its various degrees," and when an instruction" is given for any less grade of offence, and there is no evidence upon which to base it," the judgment should be reversed for error; in McCoy v. State, 27 Texas App. 415, the charge being murder of the first degree, that the refusal to charge the law of murder in the second degree was not error, for the reason that if the defendant was "criminally responsible at all for the homicide, the grade of the offence under the facts is not short of murder of the first degree;" in State v. McKinney, 111 N. C. 683, a murder case, that as there was no testimony on either side tending to show manslaughter, a charge that there was no element of manslaughter in the case, and that the defendant was guilty of murder or not guilty of anything at all, as the jury should find the facts, was strictly in accordance with the testimony and the precedents; in State v. Musick, 101 Missouri, 260, 270, where the charge was an assault with malice aforethought, punishable by confinement in the penitentiary, that an instruction looking to a conviction for a lower grade included in the offence charged, was proper where there was evidence justifying it; in State v. Casford, 76 Iowa, 330, 332, that the defendant, so charged in an indictment that he could be convicted of rape, an assault to commit rape, or an assault and battery, was not prejudiced by the omission of the court to instruct the jury that he could be convicted of a simple assault, there being no evidence to au |