Williams v. State

10 Ind. 503

Opinion

Davison, J.

Indictment for grand larceny. Verdict against the defendant; upon which the Court, having refused a new trial, rendered judgment.

The evidence being closed, the defendant moved to instruct the jury as follows:

“ By the constitution of this state, the jury in criminal cases are the judges both of the law and the facts.”

This instruction was refused; but the Court gave the following:

“ You are the exclusive judges of the evidence, and may determine the law; but it is as much your duty to believe the law to be as charged to you by the Court, as it is your sworn duty to determine the evidence.”

Whether, at common law, the jury in' criminal cases are the judges of the law of the case, is a question which has been often before this Court; and it must be conceded that its adjudications on the subject are not uniform.

Townsend v. The State, 2 Blackf. 151, decides that the jury are the judges of the facts, both in civil and criminal cases, but that they are not, in either, the judges of the law; that they are bound to find the law as propounded by the Court; and though they'may find a general verdict, including both the law and the facts, still, if in such verdict they find the law contrary to the instructions of the Court, they thereby violate their oath.

But this decision is, in effect, overruled by Warren v. The State, 4 Blackf. 150. There, the Court held affirmatively that, in an indictment for larceny, the jury have the right to determine the law as well as the facts of the case.

In Carter v. The State, 2 Ind. R. 617, the Circuit Court had charged that the jury were the judges of the law and the facts; but that it-was their duty to believe the law to be as laid down by the Court. This charge was sustained; and in the opinion delivered, the Court say: u Taken altogether, the instruction expresses the law. It informs the jury that it is in their powder to find a general verdict oi guilty or not guilty, as they please, upon the whole case, and at the same time admonishes them that duty dictates that they should take the law from the Court.” The position thus assumed is substantially the same as that taken in Townsend v. The State, viz., that the jury, though they may find a general verdict including both the law and the facts, are still bound in duty — which means their duty as jurors — their sworn duty — to find the law as propounded to them by the Court.

This exposition is no doubt correct. Mr. Wharton, in his treatise on Criminal Law, says: “ In England, it has always been held that the Court were as much the judges of law- in criminal as in civil cases, with the qualification that owing to the peculiar doctrine of autrefois acquit, a criminal acquitted could not be overhauled.”

And in this country the same rule of decision is sustained by a weight of authority which seems to be conclusive. United States v. Battiste, 2 Sumner, 243.—Commonwealth v. Porter, 10 Met. 262.—Pierce v. The State, 13 N. Hamp. R. 536.—Carpenter v. The People, 8 Barb. 603.

But the question before us does not rest upon common-law rule. The constitution (art. 1, § 19), says: “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” Hence, it will at once be seen that the jury, in the cases to which the section refers, are now at liberty to settle the law for themselves; and the result is, that an instruction of the Court in any degree tending to impair their right so to determine the law, would be objectionable; because the party accused has an undoubted right to have the law of his case settled in accordance with the established rules of criminal procedure.

How, then, stands the case upon the record? The jury were told — “ You are the exclusive judges of the evidence, and may determine the law.” Thus far, the instruction, in effect, concedes their right to adjudge the law; but its concluding branch, viz., “ It is ^ much your duty to believe the law to be as charged to you by the Court, as it is your sworn duty to determine the evidence,” — renders the instruction erroneous; because the whole, taken together, states the common-law rule which, as we have shown, is in direct conflict with § 19, art. 1, of the constitution.

Evidently it was not, in the sense of the instruction, their duty to believe the law as charged by the Court' — otherwise they could have had no right to determine it themselves. The instruction cannot be sustained.

But we have a statute which requires the Court, in its charge to the jury in criminal cases, to state “ all matters of law necessary for their information in giving ther verdict.” 2 B. S. p. 376. It is insisted that this enactment conflicts with the constitution; but we are not of that opinion. It simply confers upon the Court an advisory power —directs the judge to inform the jury as to the law of the case; and though it may be their duty to respect and give due consideration to the opinion of the Court on questions of law applicable to the facts proved, still the statute does not, either in terms or by implication, deprive the. jury of their right, under the constitution, to determine the law. Lynch v. The State, 9 Ind. R. 541.—Daily v. The State, at the present term

Footnotes

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Hanna, J.

In the opinion pronounced by the Court, in this case, I cannot concur, for the reason that it is in my opinion calculated to subvert the system of jurisprudence which has heretofore prevailed in this state, and defeat the ends of justice.

The decision is, in effect, placing in the hands of a jury the unlimited and unrestrained power to find a defendant guilty or not guilty, without regard to law or evidence.This is stating the case strongly, but no stronger than the conclusion arrived at by the Court will warrant. And still more, in cases of improper convictions, the presiding judge would yet have the right, until it is decided otherwise, to grant new trials, whilst, upon an improper acquittal, there is no redress for violated law. Law is said by writers to be a rule of action. It should be fixed, then. If each jury decide for themselves what the law is, there can be no fixed rule—no rule at all—upon any subject. The decisions will vary according to the views of different juries.

In the case at bar, the instruction now held to be erroneous is as follows:

“ You are the exclusive judges of the evidence, and may determine the law; but it is as much your duty to believe the law to be as charged to you by the Court, as it is your sworn duty to determine the evidence.”

The first branch of this instruction embodies the statutory and constitutional rights of the jury, to-wit, that they% are the exclusive judges of the evidence—of all questions of fact (2 R. S. p. 376, § 113)—and that they may determine the law. Constitution, art. 1, § 19. The latter branch of the instruction, it is assumed, limits them in the exercise of the right, in the full extent to which by the constitution they are authorized to exercise it, in determining upon the law.. Let us see whether the language used will bear that construction. The jury were informed that it was as much their duty to believe the law to be as charged by the Court, as it was their sworn duty to decide upon the evidence. Now, they had just been told that they had full power to determine upon the evidence — that they were the exclusive judges thereof. This evidence they received from the witnesses, and might give greater credit to one than another — might credit or discredit a particular witness. So, just the same legal exercise of judgment and discrimination 'that was used in determining upon the weight that should be given to the testimony of particular witnesses, was in like manner to be exercised in weighing the instructions given by the Court — no more, no less. They might believe the witnesses or disbelieve them; but certainly it was their duty to believe each one had sworn honestly and truly, if they could reconcile it with their conscience and the other testimony to so believe. Precisely to the same extent, they were called upon to believe that the tribunal, whose duty it was to give them the law in charge, had done so properly and correctly. The Court did not say to them that they were absolutely to take the law from the Court, but that in considering the case it was as much their duty to believe that the Court had correctly stated the principles of law governing that case, as it was their duty to believe that witnesses had correctly stated the facts. This was subservient, too, to the general statement which had, in the same sentence, been made to them — that they were the exclusive judges of those facts, and might.determine the law. How determine it? Determine it after giving due weight to the charge of the Court as to what that law was. Not that they had the right to disregard such instructions, without having first weighed and considered them — not that they had the right to cast aside any portion of the testimony, without weighing and considering it; but that it was alike their duty to consider the testimony, as detailed by the witnesses, and the charges, as given by the Court; because it was the duty of the one to give the testimony, and of the other to charge the law. They might, after such consideration, say, “ this testimony is not evidence;” and, perhaps, might say, “ this charge is the law, but is not applicable to the facts proved in the case.” But it is a ruling that may possibly lead to unfortunate results, to hold, even in effect, that a jury can, without investigation, cast aside the one, or disregard the other.

When a man is indicted, he has a right to a speedy and fair trial, according to the known and long-established rules of law governing in such cases, and he should not be tried by any other standard; a jury should not be at liberty to shorten or lengthen it, either in requiring more or less evidence, as their whim or caprice may dictate, or by laying down unwholesome legal principles. The safety of every citizen demands this. A jury may return a verdict of guilty, without giving a reason therefor, and such verdict may be, by them, based upon an entirely wrong construction of the law. Where would be the remedy? How could you know what operated upon their minds? The Court may lay down the law in a charge. Counsel may except, and if the charge is wrong have the benefit of the exception. But if the jury are to be the sole arbiters, they may wrongfully lay down the law in a secret jury room, convict the defendant, and cause him to be executed — executed for the reason that the whole case might properly turn upon the conclusion of the jury as to a doubtful state of facts — and a new trial might be refused by the Court, under the supposition that such doubtful state of facts had been found against him by the jury, and, without knowing that such point of fact was found in his favor, but a wrong conclusion as to the law arrived at by them in their secret conference.

It would appear that a plain statement of a ease, properly involved in this decision, ought to refute the position taken. Suppose a jury should return a verdict of guilty against a man accused of a heinous offense. Suppose the evidence to be perfectly clear — overwhelming—and that in the charges every principle of law governing the case is clearly and properly laid down, but in commenting upon the powers and duties of the jury, the same statement should be made by the judge as in this case; would the Court, believing the verdict to be right by the evidence— right by the law — and that the man ought to be convicted, —reverse the case because in these comments the judge may have so far blinded and misled the jury as to induce them to return a’correct verdict, — and, therefore, set4'it aside?

This is not a strained construction of this decision, but a correct exposition of its doctrines, when carried to their legitimate conclusion.

Again, if this unchecked right of determining the law exists in the jury as to matters arising upon the trial, is it limited or unlimited? If unlimited, then the jury might pass upon the validity of the indictment, or the legality of any other portion of the record. But this Court has decided, in the case of Daily v. The State, at this term, that such is not the province of the jury. But I insist that the legitimate consequence of the doctrines of the Court in this case, when carried out, would give the jury the same power to determine the law upon one as well as. another branch of the case — upon the record as well as the evidence.

It is conceded by my brother judges that the case of Carter v. The State, 2 Ind. R. 617, was, at that time, a proper exposition of the law — and why? Because it was in accordance with the common' law, which was in force here, and which secured the right of trial by jury in a Court, and subject to the control of a judge, as to the admission of evidence and charging the law to the jury. It did not contemplate that the jury should try the case out of a Court, and independent of the supervision of a judge, supposed to be learned in the law, as to the reception of evidence, and as to the exposition of legal questions.

This Carter case is in. like manner in accordance with the practice, in our federal Courts, under the constitution of the United States. That instrument, in all criminal prosecutions, secures to the accused the right to a speedy and public trial by an impartial jury (Const. U. S., art. 3, § 2, and art. 6 of the amendments); and yet but ’seldom since the impeachment of Judge Chase has it been maintained that a jury, under those provisions could act independently of the Court; but to the reverse, it is now the daily prac tice for the Court to give them the law, and they determine the facts.

"The record in the Carter case shows'that the defendant asked the Court to instruct the jury that “the jury are the judges of the law and the facts, and can find their verdict accordingly; which the Court refused to give in terms, but gave it with the following qualifications, to-wit: ‘ The jury are the judges of the law and the facts, and can find their verdict accordingly; but you are to believe the law as laid down by the Court to be the law of the land.’”

Here was a positive injunction laid upon the jury to take the law from the Court, absolutely — not to the same extent that they might determine the facts, but unqualifiedly and without reserve' — stronger, much stronger, than the charge in the case at bar; and that instruction was approved by this Court, and the judgment against the man affirmed.

But it is said that the new constitution has abrogated the rule of practice which prevailed at the time of that decision, which was in 1851, and that although that rule of practice was then right, yet that a new era has dawned upon us, or rather upon juries, since the adoption of this new constitution in 1851.

Let us examine this question. Here, it might be premised that if the framers of that instrument had intended to work so radical a change in the practice of administering the laws as to make the jury omnipotent and the judge a mere automaton to record their findings, it is rather strange that so great a change should not have been talked about by them, and so held by some of our numerous judges, in the multiplicity of constitutional questions investigated in the five years past. It is believed that it was not the intention of the framers of the constitution, by the adoption of the section relied on, to institute such entire change. That section is as follows:

“ Sec. 19. In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” 1 R. S. p. 44.

That belief is in accordance with the former decisions of this Court, since 1852, upon the point involved; to-vvit, in the case of Driskill v. The State, Rice v. The State and Stocking v. The State, which were convictions for murder in the first degree, and in each of which the decision in the Carter case is approvingly alluded to, either directly or indirectly, the convictions maintained, and the men executed. The record in the case of Stocking v. The State, points out as one of the erroneous rulings of the Court, that the instructions abridged the constitutional privilege of the jury, and misled them as to their right to determine the law under the constitution, and refers to 1 F. S. p. 44, § 19— thus pointing out the section upon which this decision is now made to rest. And the argument then made by counsel was, that the Carter case was based upon the common law and the old constitution, and was then correct; but that the new constitution vested in the jury the power to determine the law as well as the. facts, even in “opposition to the Court’s instructions,” &c. In alluding to the instructions, judge Stuart says: “This instruction is correct. It is far less objectionable than this Court has sustained. Carter v. The State, 2 Ind. F. 617. There the instruction was, that it was ‘ the duty of the jury to believe the law as laid down by the Court,’ and it was held to be correct.” So in Rice v. The State, Judge Perkins says: “We shah say nothing upon the subject of the charge of the Court to the jury. It has been held in Driskill v. The State, at this term, that such a charge is not erroneous.” In Driskill v. The State, referred to, Judge Pettit had instructed the jury that “in this and all criminal cases the jury has a right to judge of the law and the facts; but it is the duty of the Court to instruct them as to what the law is, and it is proper for them to respect and take for law what the Court declares it to be.” It was contended that the part of this instruction which advised the jury that it was “ proper,” &c., to the end of the sentence, was wrong. Judge Davison says: “The point involved in this position has been decided. Carter v. The State, 2 Ind. R. 617, was an indictment for murder. In that case the Court instructed the jury that they were, &c. Held, that the instruction was right. This case is, in our opinion, a correct exposition of the law, and is decisive of the question under consideration.” Here, not only the instruction of Judge Pettit is held to be correct, and which it is not intended to call in question now, but the case of Carter is referred to as being at that time, to-wit, in 1855, a correct exposition of the law. It is evident, then, that up to that time the construction now placed upon the new constitution, had not been maintained by this Court. And the question is, ought it to be?

In determining this question we should look to some other decisions, &c. In Murphy v. The State, 6 Ind. R. 490, and Lynch v. The State, 9 Ind. R. 541, this Court held that the Court trying the case has the power to prevent counsel from reading from law books to the jury. In Welch v. Watts, this Court held that the Court is bound to instruct the jury. 9 Ind. R. 115. And so is the statute. 2 R. S. p. 110. And so is the statute regulating criminal trials. 2 R. S. pp. 375, 376.

Now, if these decisions are correct, from whence do the jury derive a knowledge of the law that should enable them to come to a correct conclusion in an intricate criminal trial. The Court can refuse to permit attorneys the privilege of reading it in the hearing of the jury. They are authorized, according to this decision, to entirely disregard what the Court may say to them upon the questions of law involved. Are they supposed to have an intuitive knowledge of the law? Is the arbitrary rule and fiction of law to prevail in reference to a juror as in cases affecting a man’s personal relations towards society and other men —that he is presumed to know what the law is, and therefore responsible if he violates it? Certainly it will not be argued that the tribunal which holds in its hands the life, the liberty, and the right of property, of every citizen, can arbitrarily dispose of those sacred rights, in blissful ignorance of the principles of law governing their possession and enjoyment. Suppose a case was on trial before a jury who had not made law the subject of reading or reflection, in which the Court should refuse to permit counsel to read to them the law, and that jury should refuse to pay any heed to the charge of the Court upon the .law, — what certainty could there be that the law would be correctly applied? None — however honest the men — unless the fiction is a truth, and no longer a fiction, that every man is presumed to know the law controlling him as an individual, and not only so, but that it applies with equal force to him when acting as a juror, and in pointing out to him law governing the case in hand, as well as his rights and duties as a juror. If this is true, how could such juror, with such intuitive and perfect knowledge of his rights and duties, be misled by a charge directed to a limitation of his rights and privileges, or an increase of his duties ? Let us for a moment again advert to the case given, in which it was supposed that the evidence was clear — the charge of the Court upon the law governing the case right — the presumption, under the construction of the constitution maintained in this decision, would be, that the jury had the knowledge and the right to decide the law and the facts of the case correctly,: — would that presumption change in a moment, upon the return of a verdict of guilty, because the Court, in charging the jury as to their rights, should say, “it is as much your duty to believe the law to be as charged by the Court as it is your sworn duty to decide upon the evidence,” and therefore the law presumes they were misled?

All these considerations lead to but one conclusion, and that is, that it was not the intention of the framers of our constitution to thus uproot the safeguards which had prevailed in the administration of our criminal law; but that Courts should still be organized and held responsible to a superior tribunal for a correct exposition of the law, and juries should be impanneled and have the right to pass-upon the facts of every case, and determine the application of the law of the case, as charged by the Court, receiving it as law.

Per Chiriam. — The judgment is reversed. Cause remanded, &c.

J. W. Gordon (2), A. H. Connor, M. C. Hunter and P. C. Dunning, for the appellant.

Post.

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It was abolished 6 Geo. 4, c. 59, § 60.

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Mr.. Gordon has, since submitting his argument, furnished me a reference to Hale’s P. C., where it is said that an attaint might be had for false verdict in a criminal case. — Reporter.