Breese, J.
The loose and disconnected manner in which this record is made up and presented to the court, would fully justify, in an ordinary case, its rejection altogether, but as it is in a case in which the life of an individual is involved, we have studiously endeavored to extract from it all such portions as we have deemed the most important. We will state very briefly the results at which we have arrived, no time being allowed for elaborate argument or illustration.
Very many exceptions have been taken to the rulings of the court on the various questions raised, 'all of which we do not consider it necessary to notice.'
The first twelve exceptions which were taken on the trial, we do not consider to have been well taken, as the evidence offered had no direct bearing upon the issue to be tried. The testimony of David Strawn, given on behalf of the People, might not, at first view, be considered pertinent, but as rebutting testimony, it may have been, and in the absence of all proof in the record, the testimony not being certified to us, we are inclined so to consider it.
We have no fault to find with most of the instructions given to the jury before they retired, on behalf of the People, nor with the refusal of the court to give the instructions as asked by the prisoner.
Those on the part of the People, going to the question of insanity, state the law correctly, for the most part. The jury, in all cases where such a defense is interposed, should be distinctly told that every man is presumed to be sane, until the contrary is shown—that is his normal condition. • Before such a plea can be allowed to prevail, satisfactory evidence should be offered that the accused, in the language of the criminal code, was , “ affected with insanity,” and at the time he committed the act, was incapable of appreciating its enormity. This rule is founded in long experience, and is essential to the safety of the citizen. Sanity being the normal condition, it must be shown, by sufficient proof, that from some cause, it has ceased to be the condition of the accused.
On the evening of the 20th of July, the juiy having been out more than twenty-four hours, and unable to agree, came into court, and through their foreman, submitted to the court a paper written upon in pencil, among other matters the following: “ The juror maintains that he is competent to judge of the correctness of any or all of the instructions of the judge, as his, the juror’s, own opinion of the law may dictate.” To this the court responded as follows: “ The jury must take the law as given to them by the court, as the law which is to govern them in this case. It is for the jury to determine whether the law thus laid down by the court, is applicable to the proofs in the case. If the jury find the facts to be such as to make the law applicable either to a case of murder or manslaughter, or to a case of insanity, or to a state of innocence, the law as laid down to them must be made to apply. It is not for the jury to say that the instructions given are not the law by which they are to determine the guilt or innocence of the prisoner.”
On the following day, the 21st of July, the jury again came into court, and among other matters, the court told them, in answer to a question propounded by them: “ There is but one law by which they are to decide the question before them, and that is the law laid down to them by the court,” and further, that “ It is not the law that the jury can go outside of the case as given to them by the testimony and the instructions of the court, and determine for themselves whether the law, as given to them, is or is not the law,” and further, that “ It is not lawful for the jury to go behind the instructions given to them by the the court, and take it upon themselves to determine by law books, or in any other manner, whether the ruling of the court is or is not correct. They must take the instructions as they receive them from the court to be the law by which they are to be governed in the case,” and further, that “ the law defines what crime is, and the jury must take that definition as it stands in the instructions given to them.”
On the day following, July 22nd, the jury came again into court for further instructions, and, through their foreman, propounded, in writing, another question to the court, as to the credit to be given to witnesses, on which the court properly instructed the jury, and on concluding, the foreman of the jury informed the court that there was no probability of the jury ever agreeing, and wished the court to discharge them, which the court refused to do, and remarked to the jury that he “ considered it his duty to keep the jury longer, in view of the fact that the prisoner was charged with the commission of the highest crime known to the law, and that the security of the life of the people required, as well as the interests of the prisoner, that the jury should not be discharged until every effort had failed, and there was no probability whatever that the jury could agree; ” remarking to the jury, in this connection, “ that before the next term of the court, the witnesses may be in their graves, and justice may be cheated of its victim.” At the same time, the prisoner’s counsel asked the court to have some instructions given to the jury for the prisoner, which the court refused to allow, or suffer them to offer any instructions on his behalf, declaring that no further instructions would be given either for the People or the prisoner, except requested to do so by the jury-
Section 188 of the criminal code, (Scates’ Comp. 408,) declares in the most pointed and emphatic language, that “ Juries, in all cases, shall be judges of the law and the fact.” This power is conferred in the most unqualified terms, and has no limits which we can assign to it. We have said, in the case of Schneir v. The People, ante,^. 17, that, beingjudg4s of the law and the fact, they are not bound by the law, as given to them by the court, but can assume the responsibility of deciding, each juror for himself, what the law is. If they can say, upon their oaths, that they know the law better than the court, they have the power so to do. If they are prepared to say the law is different from what it is declared to be by the court, they have a perfect legal right to say so, and find the verdict according to their own notions of the law. It is a matter between their consciences and their God, with which no power can interfere. There can be no apprehension of oppression to the citizen in so looping this power, for an erroneous decision of the jury against a prisoner can be corrected by the power remaining in the court to award a new trial. The jury were not bound to take the law as “ laid down” to them by the court, but had the undoubted right to decide it for themselves, and in refusing so to declare, the court erred.
The remark made by the court, on the 22nd of July, when the jury desired to be discharged, should not have been made. It had a powerful tendency to prejudice the prisoner, as indicating the opinion of the court that he was a guilty person, and a proper victim. It is to be regretted such a remark was made in such a case—one of life or death, in which the supposed leaning of the court, no matter how unfounded, is calculated to influence a jury. This, of itself, would be sufficient to reverse the judgment.
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Breese, J.
The loose and disconnected manner in which this record is made up and presented to the court, would fully justify, in an ordinary case, its rejection altogether, but as it is in a case in which the life of an individual is involved, we have studiously endeavored to extract from it all such portions as we have deemed the most important. We will state very briefly the results at which we have arrived, no time being allowed for elaborate argument or illustration.
Very many exceptions have been taken to the rulings of the court on the various questions raised, 'all of which we do not consider it necessary to notice.'
The first twelve exceptions which were taken on the trial, we do not consider to have been well taken, as the evidence offered had no direct bearing upon the issue to be tried. The testimony of David Strawn, given on behalf of the People, might not, at first view, be considered pertinent, but as rebutting testimony, it may have been, and in the absence of all proof in the record, the testimony not being certified to us, we are inclined so to consider it.
We have no fault to find with most of the instructions given to the jury before they retired, on behalf of the People, nor with the refusal of the court to give the instructions as asked by the prisoner.
Those on the part of the People, going to the question of insanity, state the law correctly, for the most part. The jury, in all cases where such a defense is interposed, should be distinctly told that every man is presumed to be sane, until the contrary is shown—that is his normal condition. • Before such a plea can be allowed to prevail, satisfactory evidence should be offered that the accused, in the language of the criminal code, was , “ affected with insanity,” and at the time he committed the act, was incapable of appreciating its enormity. This rule is founded in long experience, and is essential to the safety of the citizen. Sanity being the normal condition, it must be shown, by sufficient proof, that from some cause, it has ceased to be the condition of the accused.
On the evening of the 20th of July, the juiy having been out more than twenty-four hours, and unable to agree, came into court, and through their foreman, submitted to the court a paper written upon in pencil, among other matters the following: “ The juror maintains that he is competent to judge of the correctness of any or all of the instructions of the judge, as his, the juror’s, own opinion of the law may dictate.” To this the court responded as follows: “ The jury must take the law as given to them by the court, as the law which is to govern them in this case. It is for the jury to determine whether the law thus laid down by the court, is applicable to the proofs in the case. If the jury find the facts to be such as to make the law applicable either to a case of murder or manslaughter, or to a case of insanity, or to a state of innocence, the law as laid down to them must be made to apply. It is not for the jury to say that the instructions given are not the law by which they are to determine the guilt or innocence of the prisoner.”
On the following day, the 21st of July, the jury again came into court, and among other matters, the court told them, in answer to a question propounded by them: “ There is but one law by which they are to decide the question before them, and that is the law laid down to them by the court,” and further, that “ It is not the law that the jury can go outside of the case as given to them by the testimony and the instructions of the court, and determine for themselves whether the law, as given to them, is or is not the law,” and further, that “ It is not lawful for the jury to go behind the instructions given to them by the the court, and take it upon themselves to determine by law books, or in any other manner, whether the ruling of the court is or is not correct. They must take the instructions as they receive them from the court to be the law by which they are to be governed in the case,” and further, that “ the law defines what crime is, and the jury must take that definition as it stands in the instructions given to them.”
On the day following, July 22nd, the jury came again into court for further instructions, and, through their foreman, propounded, in writing, another question to the court, as to the credit to be given to witnesses, on which the court properly instructed the jury, and on concluding, the foreman of the jury informed the court that there was no probability of the jury ever agreeing, and wished the court to discharge them, which the court refused to do, and remarked to the jury that he “ considered it his duty to keep the jury longer, in view of the fact that the prisoner was charged with the commission of the highest crime known to the law, and that the security of the life of the people required, as well as the interests of the prisoner, that the jury should not be discharged until every effort had failed, and there was no probability whatever that the jury could agree; ” remarking to the jury, in this connection, “ that before the next term of the court, the witnesses may be in their graves, and justice may be cheated of its victim.” At the same time, the prisoner’s counsel asked the court to have some instructions given to the jury for the prisoner, which the court refused to allow, or suffer them to offer any instructions on his behalf, declaring that no further instructions would be given either for the People or the prisoner, except requested to do so by the jury-
Section 188 of the criminal code, (Scates’ Comp. 408,) declares in the most pointed and emphatic language, that “ Juries, in all cases, shall be judges of the law and the fact.” This power is conferred in the most unqualified terms, and has no limits which we can assign to it. We have said, in the case of Schneir v. The People, ante,^. 17, that, beingjudg4s of the law and the fact, they are not bound by the law, as given to them by the court, but can assume the responsibility of deciding, each juror for himself, what the law is. If they can say, upon their oaths, that they know the law better than the court, they have the power so to do. If they are prepared to say the law is different from what it is declared to be by the court, they have a perfect legal right to say so, and find the verdict according to their own notions of the law. It is a matter between their consciences and their God, with which no power can interfere. There can be no apprehension of oppression to the citizen in so looping this power, for an erroneous decision of the jury against a prisoner can be corrected by the power remaining in the court to award a new trial. The jury were not bound to take the law as “ laid down” to them by the court, but had the undoubted right to decide it for themselves, and in refusing so to declare, the court erred.
The remark made by the court, on the 22nd of July, when the jury desired to be discharged, should not have been made. It had a powerful tendency to prejudice the prisoner, as indicating the opinion of the court that he was a guilty person, and a proper victim. It is to be regretted such a remark was made in such a case—one of life or death, in which the supposed leaning of the court, no matter how unfounded, is calculated to influence a jury. This, of itself, would be sufficient to reverse the judgment.
The court also erred in refusing, after making these remarks to the jury, to permit the prisoner’s counsel to offer any instructions which the remark of the court was well calculated to suggest, and which, if permitted to be given, 'might have blunted the force of the remark. We hold, when a jury comes into court asking instructions, and are placed in a situation to be influenced by the court, the prisoner had an unquestionable right to present such views, in the shape of instructions to the jury, as the circumstances might require in his own behalf, and the court should have allowed it.
As a question of practice, we do not think it is proper for any juror to communicate to the court in writing or verbally, in reference to any matter belonging to the case. If they desire to communicate with the court, they should send a request to the court through the officer in attendance, that they may, in a body, be brought into court. Nor do we think it good practice for the court to permit any one of the jurors, whilst they are deliberating, to leave the jury room and come into court, and hold a conversation with the court, or that the court should make such a request of the foreman or of any other member of the jury. It is liable to great abuse.
We have said we were satisfied with most of the instructions given for the People before the jury retired. Such is the confused state of the record, and the want of time at our disposal, that we have not been able to examine them all so critically as we could wish, but are satisfied some of them, as the eighth and ninth on behalf of the People, require some modification, so as to conform to the principles we have here endeavored to lay down.
We also think the prisoner’s fourth instruction should have been given. Though such a state of mind would not excuse the homicide, it should reduce it to manslaughter, for deliberation would be absent, and that, is essential to constitute murder.
For the reasons we have so hurriedly given, the judgment must be reversed, and the cause remanded for a new trial.
Judgment reversed.