Opinion of the Court. the prisoner occurs, it will be rectified by the revision of the court in banc. But an error resulting from either a conviction or acquittal, against the law, can never be rectified. In the first case, an unnecessary stigma is affixed to the character of a man who was not guilty of the offence with which he is charged. In the second case, a serious injury is effected by the arbitrary and irremediable discharge of a guilty man. You will see from these considerations the great importance of the preservation, in criminal as well as in civil cases, of the maxim that the law belongs to the court and the facts to the jury." About the same time Judge Sergeant charged a jury: "The point, if you believe the evidence on both sides, is one of law, on which it is your duty to receive the instructions of the court. If you believe the evidence in the whole case, you must find the defendant guilty." Commonwealth v. Vansickle, Brightly, (Penn.,) 69, 73, 75. To the same effect substantially was the language of Chief Justice Gibson, who, when closing a charge in a capital case, said: "If the evidence on these points fail the prisoner, the conclusion of his guilt will be irresistible, and it will be your duty to draw it." Commonwealth v. Harman, 4 Penn. St. 269. In a more recent case, Kane v. Commonwealth, 89 Penn. St. 522, Sharswood, C. J., said that the power of the jury to judge of the law in a criminal case was one of the most valuable securities guaranteed by the bill of rights of Pennsylvania. But in a later case, Nicholson v. Commonwealth, 96 Penn. St. 503, 505, it was said: "The court had an undoubted right to instruct the jury as to the law, and to warn them as they did against finding contrary to it. This is very different from telling them that they must find the defendant guilty, which is what is meant by a binding instruction in criminal cases." In Commonwealth v. McManus, 143 Penn. St. 64, 85, it was adjudged that the statement by the court was the best evidence of the law within the reach of the jury, and that the jury should be guided by what the court said as to the law. And this view the court, speaking by Chief Justice Paxson, said was in harmony with Kane v. Commonwealth. The question has recently been examined by the Supreme Court of Vermont, and after an elaborate review of the Opinion of the Court. authorities, English and American, that court, by a unanimous judgment—overruling State v. Croteau, 23 Vermont, 14, and all the previous cases which had followed that case said: "We are thus led to the conclusion that the doctrine that jurors are the judges of the law in criminal cases is untenable; that it is contrary to the fundamental maxims of the common law from which it is claimed to take its origin; contrary to the uniform practice and decisions of the courts of Great Britain, where our jury system had its beginning, and where it matured; contrary to the great weight of authority in this country; contrary to the spirit and meaning of the Constitution of the United States; repugnant to the constitution of this State; repugnant to our statute relative to the reservation of questions of law in criminal cases and passing the same to the Supreme Court for final decision." State v. Burpee, 65 Vermont, 1, 34. These principles are supported by a very large number of adjudications, as will be seen by an examination of the cases cited in the margin.1 To the same purport are the text writers. "In theory, therefore," says Judge Cooley, "the rule of law would seem to be, that it is the duty of the jury to receive and follow the law as delivered to them by the court; and such is the clear weight of authority." Const. Lim. 323, 324. Greenleaf, in his treatise on the Law of Evidence, says: "In trials by jury, it is the province of the presiding judge to determine all ques 1 People v. Wright, 93 Cal. 564; Brown v. Commonwealth, 87 Va. 215; People v. Barry, 90 Cal. 41; People v. Madden, 76 Cal. 521; State v. Jeandell, 5 Harr. (Del.) 475; State v. Wright, 53 Maine, 328; Commonwealth v. Van Tuyl, 1 Met. (Ky.) 1; Montgomery v. State, 11 Ohio, 427; Adams v. State, 29 Ohio St. 412; Robbins v. State, 8 Ohio St. 131, 167; Williams v. State, 32 Miss. 389, 396; Pleasant v. State, 13 Ark. 360, 372; Robinson v. State, 66 Geo. 517; Brown v. State, 40 Geo. 689, 695; Hunt v. State, 81 Geo. 140; State v. Drawdy, 14 Rich. (S. C.) 87; Nels v. State, 2 Tex. 280; Myers v. State, 33 Tex. 525; State v. Jones, 64 Mo. 391; Hardy v. State, 7 Mo. 607; State v. Elwood, 73 N. C. 189; State v. McLain, 104 N. C. 894; People v. Neuman, 85 Mich. 98; State v. Johnson, 30 La. Ann. 904; State v. Ford, 37 La. Ann. 443, 465; Fisher v. Railway Co., 131 Penn. St. 292, 297; Union Pacific Railway v. Hutchinson, 40 Kansas, 51. Opinion of the Court. tions on the admissibility of evidence to the jury, as well as to instruct them in the rules of law, by which it is to be weighed. Whether there be any evidence or not is a question for the judge; whether it is sufficient evidence is a question for the jury." "Where the question is mixed, consisting of law and fact, so intimately blended as not to be easily susceptible of separate decision, it is submitted to the jury, who are first instructed by the judge in the principles and rules of law, by which they are to be governed in finding a verdict, and these instructions they are bound to follow." Vol. 1, § 49. Starkie, in his treatise on Evidence, observes: "Where the jury find a general verdict they are bound to apply the law as delivered by the court, in criminal as well as civil cases." p. 816. So in Phillips on Evidence: "They [the jury] are not in general, either in civil or criminal cases, judges of the law. They are bound to find the law as it is propounded to them by the court. They may, indeed, find a general verdict, including both law and fact; but if, in such verdict, they find the law contrary to the instructions of the court, they thereby violate their oath." Vol. 3, Hill & Cowen's Notes, part 2, 1501. See also 1 Taylor on Ev. §§ 21 to 24; 1 Best's Ev. Morgan's ed. § 82. In 1 Crim. Law Mag. 51 will be found a valuable note to the case of Kane v. Commonwealth, prepared by Mr. Wharton, in which the authorities are fully examined, and in which he says: "It would be absurd to say that the determination of the law belongs to the jury, not court, if the court has power to set aside that which the jury determines. We must hold, to enable us to avoid the inconsistency, that, subject to the qualification that all acquittals are final, the law in criminal cases is to be determined by the court. In this way we have our liberties and rights determined, not by an irresponsible, but by a responsible, tribunal; not by a tribunal ignorant of the law, but by a tribunal trained to and disciplined by the law; not by an irreversible tribunal, but by a reversible tribunal; not by a tribunal which makes its own law, but by a tribunal that obeys the law as made. In this way we maintain two fundamental maxims. The first is, that while to Opinion of the Court. facts answer juries, to the law answers the court. The second, which is still more important, is 'nullum crimen, nulla pœna, sine lege. Unless there be a violation of law preannounced, and this by a constant and responsible tribunal, there is no crime, and can be no punishment." 1 Crim. Law Mag. 56. The same author, in his treatise on Pleadings and Practice, concludes his examination of the question in these words: "The conclusion we must, therefore, accept is, that the jury are no more judges of law in criminal than in civil cases, with the qualification that owing to the peculiar doctrine of autrefois acquit, a criminal acquitted cannot be overhauled by the court. In the Federal courts such is now the established rule." $$ 809, 810. Forsyth, in his History of Trial by Jury a work of merit -discusses the doctrine advanced by some that the jury were entitled in all cases, where no special pleas have been put on the record, to give a general verdict according to their own views of the law, in criminal as well as in civil cases. He says: "It is impossible to uphold the doctrine. It is founded on a confusion between the ideas of power and right." "Indeed, it is difficult to understand how any one acquainted with the principles and settled practice of the English law can assert that it sanctions the doctrine which is here combated." Again: "The distinction between the province of the judge and that of the jury is, in the English law, clearly defined, and observed with jealous accuracy. The jury must in all cases determine the value and effect of evidence which is submitted to them. They must decide what degree of credit is to be given to a witness, and hold the balance between conflicting probabilities. The law throws upon them the whole responsibility of ascertaining facts in dispute, and the judge does not attempt to interfere with the exercise of their urfettered discretion in this respect. But, on the other hand, the judge has his peculiar duty in the conduct of a trial. He must determine whether the kind of evidence offered is such as ought or ought not to be submitted to the jury, and what liabilities it imposes. When any questions of law arise, he alone determines them, and their consideration is absolutely Opinion of the Court. withdrawn from the jury, who must in such cases follow the direction of the judge; or if they perversely refuse to do so, their verdict (in civil cases) will be set aside, and a new trial granted." London ed. 1852, pp. 261, 262, 282; Morgan's ed. pp. 235, 236. Worthington, in his Inquiry into the Power of Juries, an English work published in 1825, and often cited in the adjudged cases, says: "Were they [the jury] permitted to decide the law, the principles of justice would be subverted; the law would become as variable as the prejudices, the inclinations and the passions of men. If they could legally decide upon questions of law, their decision must of necessity be final and conclusive, which would involve an absurdity in all judicial proceedings, and would be contradictory to the fundamental principles of our jurisprudence." "The jury, when called upon to decide facts which are complicated with law, are therefore constitutionally, and must be, from the nature and intention of the institution, bound to seek and to obey the direction of the judge with respect to the law. It becomes their duty to apply to the law thus explained to them the facts, (which it is their exclusive province to find,) and thus they deliver a verdict compounded of law and fact; but they do not determine or decide upon the law in any case." pp. 193, 194. Judge Thompson, in his work on Trials, §§ 1016, 1017, thus states the principles: "The judge decides questions of law; the jury questions of fact." So in Proffat on Trial by Jury, § 375: "The preponderance of judicial authority in this country is in favor of the doctrine that the jury should take the law from the court and apply it to the evidence under its direction." The language of some judges and statesmen in the early history of the country, implying that the jury were entitled to disregard the law as expounded by the court, is, perhaps, to be explained by the fact that "in many of the States the arbitrary temper of the colonial judges, holding office directly from the Crown, had made the independence of the jury in law as well as in fact of much popular importance." Whar |