was, as the learned judge said, at first harmonious, then divergent, and finally contradictory. The jury, as has been often said, were bound to reconcile the discrepancies, if it could reasonably be done, and the judge aided them in the performance of that duty by a review of the evidence in general terms, and with substantial accuracy, making suggestions fairly warranted by the evidence, to show the jury how it might be reconciled in some parts, and the difficulty of doing so in others. Nothing but hypercriticism can find any error in this part of the charge. The ninth assignment we understand to be abandoned. Even if correctly reported, the omission of the element of premeditation in the first general description of murder of the first degree was immediately cured by the full, explicit, and accurate definition given in connection with the facts of the case in hand. The eleventh to the twenty-third assignments may be taken together and disposed of by saying that, so far as they were correct and pertinent statements of the law, they were affirmed in the charge. Points, even though taken verbatim from the decisions of this court, cannot always properly be answered by a simple affirmation. However accurately and carefully stated in their connection, and applied to the case under discussion, they may, when taken as detached sentences, and applied to different circumstances, convey erroneous ideas, especially to unlearned jurors. For example the prisoner's fourth point was that "before the jury in this case can convict of murder of the first degree they must find that the prisoner acted upon as clear and premeditated a motive as he who kills by poison or by lying in wait." This is said to be taken from the language of this court, though the case is not given, which is a very unsatisfactory mode of citing authority. It may be there are cases in which this would be a correct statement of the law; but separated from its context, and applied to the present case of shooting at a street corner, and answered by a simple affirmation, it would be dangerously liable to convey to the jury the idea that a prolonged premeditation, such as is necessarily involved in killing by poison or lying in wait, was essential to the case they had in hand. The learned judge told the jury that the design and the resolve to kill must be formed before the shot was fired; that no specific time was requisite to make premeditation; the time might be short, but that shortness of time was an argument against premeditation; and that the jury must be satisfied from the evidence that premeditation and the deliberate intent were there not merely when the shot was fired, but were there previously. This was all the prisoner was entitled to ask. He had no right to dictate the language of the court. To convey the proper ideas to the jury, language often must vary with the circumstances of the particular case. Neither under the Act of the 31st of March, 1860, or otherwise, has the prisoner a right to have answers to his points in any set form. The Statute (section 58) provides that "it shall be the duty of the court to answer the same fully:" and this is the measure, not only of the court's duty, but the prisoner's right. If the law applicable to his case is plainly, fully, and accurately stated, he has no cause of complaint, though the judge choose to express it in his own words. There remains only the twenty-fourth assignment, -that the judge erred in his answer to the point that "the jury are judges of the law as well as of the facts, and may, upon the whole case, determine the grade of the offense." The learned judge answered this point by saying that the jury had been sworn to decide the case on the law and the evidence; that the statement of the law by the court was the best evidence of the law within the jury's reach; and that therefore, in view of that evidence, and viewing it as evidence only, the jury was to be guided by what the court had said with reference to the law. This was an accurate and carefully considered answer to the point, and is entirely in harmony with Kane v. Com., 89 Pa. 522. It left the jury to decide the whole case upon the law and the evidence, --not upon the law as distinct from the evidence, and they were instructed as to what was the best evidence of the law. That is to say, in the language of the Constitution, they were to determine "the law and the facts as in other cases, under the advice and direction of the court. They were to look to the court for the best evidence of the law, just as they look to the witnesses for the best evidence of the facts. Thus interpreted and thus administered, this seeming paradox in our criminal law becomes intelligible. A judge who instructs a jury in a criminal case that they may disregard the law as laid down by the court errs as widely as the judge who gives them a binding instruction upon the law. It is the duty of the jury to take the best evidence of the law as it is to take the best evidence of the facts. When they refuse to do either, they disregard their duty and their oaths. The judgment is affirmed, and it is ordered that the record be remitted to the oyer and terminer for the purpose of execution. Mitchell, J., concurring (filed October 5, 1891) : I concur in affirming this judgment, and in the reasons given; but upon one point I would go further, and put an end, once for all, to a doctrine that I regard as unsound in every point of view, -historical, logical, or technical. The prisoner at the trial requested the judge to charge the jury that they were "judges of the law as well as of the facts." The learned judge, feeling himself bound by the language of Kane v. Com., 89 Pa. 522, answered that the jury had been sworn to decide the case on the law and the evidence; that the statement of the law by the court was the best evidence of the law within the jury's reach; and that therefore, in view of that evidence, and viewing it as evidence only, the jury was to be guided by what the court had said with reference to the law. The point should, in my opinion, have been answered with an unqualified negative. jury are not judges of the law in any case, civil or criminal. Neither at common law The nor under the Constitution of Pennsylvania | cline and final disuse of the attaint rendered is the determination of the law any part of them practically irresponsible, the struggle their duty or their right. The notion is of non was reversed, and juries asserted stoutly the right to give general verdicts, while the tendency of lawyers and judges was to confine them to special findings of fact, and to have the court pronounce the result as a matter of law. The period of transition was long, and changes slow. It was clearly and justly felt that juries as judges of the law, in any but an incidental way, were an anomaly in the system, and perhaps those who endeavored to do away with it claimed too much. Safety was thought to reside in the retention by juries of the right to give general verdicts. In view of the constant and notorious failure of justice in certain classes of cases, by the occasional perversity and the frequent cowardice of juries, it may be doubted whether it would not have produced better results to have enlarged the power of judges to compel special verdicts. But, however this may be, the right of juries to give general verdicts, especially in criminal cases, has been maintained, and the last contest made on it was in regard to libel. The exact line between law and fact, not always easy to draw, presented in the case of libel some special difficulties, technical and other. The alleged libel being in writing, its terms were not in dispute, and naturally fell to the court to pass upon, as other writings did; and the intent, libelous or otherwise, being claimed as a legal inference, there was noth ancient maxim in the days of Coke (Co. Litt. 155a; Altham's Case, 8 Coke, 155a; Dowman's Case, 9 Coke, 13a); and Mr. Bigelow, treating of the class of cases raising questions of law or some question of fact properly belonging to the court to decide, quotes the case of Archbishop of Canterbury v. Abbott of Battel Abbey, 1 Rotul. 143, temp. Steph., which "turned upon a question of law, and was decided (without appointment of a trial term) just as a modern case of the kind would be decided, by a submission of the point of law in the question to the determination of the court, and not to some test imposed by the parties." History of Proced-ing left in dispute but the fact of publica ure in England during the Norman Period, by M. M. Bigelow, p. 286. Nor was there any distinction, in respect to the merely incidental way in which juries passed upon matters of law, between civil and criminal cases. They might return a general or a special verdict in either, but they early sought to escape the obligation of giving a general verdict, because it subjected them to the risk of an attaint; and Coke says: "Some justices did rule over the recognitors to give a precise or direct verdict, without finding the special matter." 2 Inst. 422. To relieve juries from the burden the Statute of Westminster II., chap. 30, enacted. "Quod justiciarii ad assisas capiendo assignati, non compellant juratores dicere præcise si sit disseisina vel non, dummodo dicere volunerint veritatem facti et petere aurilium justic;" and, commenting upon this section, Coke says: "In the end it hath been resolved that in all actions, real, personal, and mixed, and upon all issues joined, general or special, the jury might find the mat ter of fact pertinent, and thereupon pray the discretion of the court for the law; and this the jurors might do at the common law, not only in cases between party and party whereof this act putteth an example of the assise, but also in pleas of the crown." 2 Inst. 425. tion and the truth of the innuendo. Accordingly the juries in Dean of St. Asaph's Case, 3 T. R. 428, note, and King v. Withers, Id., were confined to these two points; and it was to counteract these rulings of Buller and Mansfield and Kenyon, (though it cannot be disputed that they were in accordance with long-settled practice,) and to secure, in libel as in other cases, the right of the jury to find a general verdict upon the whole matter in issue, that the Act of 32 Geo. III., chap. 60, was passed. The text of that famous statute is worth quoting to show how little foundation it affords for the superstructure that is sought to be built upon it. It is entitled "An Act to Remove Doubts Respecting the Functions of Juries in Cases of Libel," and its language is: "Whereas, doubts have arisen whether on the trial of an indictment for the making or publishing any on that, libel, where an issue is joined It is a striking illustration of the uniformity of human motives at all periods, that, while the attaint remained as a remedy for perversity or favoritism, the struggle of juries was to escape the obligation of general verdicts, and to maintain the right of special findings of fact; but, when the devided, always, that, on every such trial, the court or judge before whom such indictment of government, and no law shall ever be or information shall be tried shall, accord- made restraining the right thereof. The free ing to their or his discretion, give their or communication of thoughts and opinions is his opinion and directions to the jury on the one of the most invaluable rights of men, matter in issue between the king and the de- and every citizen may freely speak, write fendant or defendants, in like manner as in and print, being responsible other criminal cases: provided, also, that that liberty." Proceedings of Convention, nothing herein contained shall extend, or p. 162 (Harrisburg, 1825). This was rebe construed to extend, to prevent the jury ported from committee of the whole on Feb from finding a special verdict, in their discretion, as in other criminal cases : provided, also, that in case the jury shall find the defendant or defendants guilty, it shall and may be lawful for the said defendant or defendants to move in arrest of judgment, on such ground and in such manner as by law he or they might have done before the passing of this Act, anything herein contained to the contrary notwithstanding." Nothing could be clearer than the care with which this Act was directed to the exact point in controversy, the right to render a general verdict of guilty or not guilty upon the whole issue in case of libel, and the equal care with which the right of the court to pass finally upon the questions of law was preserved by the provisos that the judge ruary 5, 1790, in the same form, (dropping only the word "most" before the word "invaluable,") but with the addition: "But upon indictments for the publication of papers investigating the conduct of individuals in their public capacity, or of those applying or canvassing for office, the truth of the facts may be given in evidence in justification upon the general issue." Id. 174. On February 22d, this section being under consideration, Mr. Addison offered as a substitute for the sentence last quoted: "In prosecutions for libels, their truth or design may be given in evidence on the general issue, and their nature and tendency, whether proper for public information or only for private ridicule or malice, be determined by the jury." To this an amendment offered should give the jury his "opinion and direc- by Mr. McKean to add, "under the directions tions," and that a verdict should still not be of the court, as in other cases," was adopted the foremost personages of the Common- | Plowd. 114a. And see 2 Hale, P. C. 302; 1 conclusive of the law against a defendant, but he should have his right to an arrest of judgment, as theretofore enjoyed. The claim that juries were to be judges of the law was thus intentionally and carefully excluded. The Constitution of Pennsylvania was made in 1790, two years before Fox's Libel Act. The controversy was then at its height, and the subject commanded popular attention. In fact, Pennsylvania had borne rather a distinguished part in the discussion, and the speech of Andrew Hamilton in the trial of John Peter Zenger was regarded as the vindication of popular rights, and not only quoted as such by Erskine, but referred to, among other authorities, by Hargrave. Co. Litt. 1556. "No lawyer, " says Mr. Binney. "can read that argument without perceiving that while it was a spirited and vigorous, though rather overbearing, harangue, which carried the jury away from the instruction of the court, and from the established law of both the colony and the mother country, he argued elaborately what was not law any where with the same confidence as he did the better points of his case. It is, however, worth remembering, and to his honor, that he was half a century before Mr. Erskine, and the declaratory act of Mr. Fox in asserting the right of the jury to give a general verdict in libel as much as in murder." Leaders of the Old Bar of Philadelphia, p. 15. The members of our convention of 1790 were familiar with the subject, and the minutes show that much care was given to framing the clause in the Declaration of Rights which refers to it. Section 7 of article 9, relating to liberty of the press, was orig inally reported to the convention by the committee to draft a proposed constitution, on December 21, 1789, in the following form: "That the printing presses shall be free to every person who undertakes to examine the proceeding of the Legislature, or any branch almost unanimously, the vote being 56 to 3; but the substitute itself received a bare majority, 32 to 27, the strong minority being in favor of restricting the truth as a justification to cases of publication upon the conduct of persons in their public capacity or of candidates for office. Id. 220-222. The convention, having ordered the proposed constitution to be published for the consideration of the citizens, adjourned on February 26th to the following August. On reconvening, the instrument was again taken up for discussion, section by section, and the minority made strenuous further efforts to restrict the justification to cases of public officers, at one time failing only by the close vote of 30 to 32. During the progress of the debate, an amendment offered by Mr. Lewis, and seconded by Mr. McKean, that "the jury shall have the same right to determine the law and the fact, under the direction of the court, as in other cases, was carried, and the clause finally adopted in the form: "In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is necessary or proper for public information, the truth thereof may be given in evidence; and, in all indictments for libels, the jury shall have a right to determine the law and the facts, under the directions of the court, as in other cases." 274, 279. It is impossible to read these various steps in the formulation of our fundamental law without seeing that there was never at any time the intention to make or to consider juries as in any sense judges of the law. No such possible construction seems to have been apprehended until suggested by McKean, and the practically unanimous vote on his motion to add, "under the direction of the court, as in other cases, " shows the feeling of the convention on this subject. McKean was at that time one of Id. wealth, perhaps its best-trained lawyer. He had studied in the Temple, and was familiar with the details of the legal controversy be tween Buller and Mansfield on the one side, and Erkskine on the other, before Fox took it up as a matter of politics; and he knew, as Lewis and Wilson and Ross and Sitgreaves and Addison and Findley and other leaders of the convention knew, that the contest was not for any control by the jury as judges of the law, -even Junius hardly ventured to put his denunciations of Mansfield in that form, -but for the right of applying the law to the facts, and pronouncing the result by a general verdict. And such was the understanding of the convention, as it was of parliament two years later, and such the natural meaning of the language on which they finally settled to express their purpose. It puts beyond question the right to return a general verdict, nothing more. To cut the sentence in two, and say the jury are "to determine the law," is not only to pervert the meaning, but to nullify the other command, that they are to determine "under the direction of the court." What they are to determine is "the law and the facts as in other cases;" that is, the law as given to them by the court, and the facts as shown by the evidence. They are bound to take the law from the court, but, so taking it, they have the right to apply it to the facts as they may find them to be proved, and to announce the result of the whole by a general verdict of guilty or not guilty. Any other construction would be totally at variance with the fundamental principles of our system of jurisprudence, Chitty, Crim. Law, 645. Much misunderstanding has, in my judgment, been caused in this State by the case of Kane v. Com., 89 Pa. 522. In that case the point was put to the court below that "the jury are the judges of the law and the fact," and all that this court decided was that the point should have been affirmed. The language of Chief Justice Sharswood was, however, less guarded than was usual with that eminent jurist; and, following State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90, he dismisses the perfectly clear and substantial distinction between "power" and "right" with a brevity that is scarcely consistent with the weight of the subject. "The distinction between 'power' and 'right,'" he says, "whatever may be its value in ethics, in law is very shadowy and unsubstantial. He who has legal power to do anything has the legal right. No court should give binding instruction to a jury which they are powerless to enforce by granting a new trial if it should be disregarded." It is somewhat remarkable that the chief justice should assume, as is so commonly done by counsel, that the jury will construe the law more favorably for the prisoner than the court would. It is only such a construction, too favorable to the prisoner, that the court is powerless to remedy by a new trial; and that lack of power arises, not because the jury's legal power is the same as a legal right, but because, for reasons of general policy, one verdict of acquittal is a final and irreversible termination of the case. If legal power means legal right, then the jury has a right a and with our settled and uncontested prac- to acquit any prisoner without regard to either law or evidence; for their power to do so is beyond question, and they cannot be held to any accountability, though they follow the maxim of lynch law, -that the murdered man deserved to die anyhow, and there. fore his murderer should not be punished, even though he no longer seeks refuge behind the thin veil of transitory insanity that began when the shot was fired, and ended when it had killed its man. Whether the distinction between power and right be shadowy and unsubstantial in practice or not, it is clear and vital, and I must repudiate such a confusion of logical as well as moral ideas. A jury may disregard the evidence, but no judge has ever said it had the legal right to do so, and, if the disregard is of the weight of the evidence favorable to the prisoner, the court sets aside the verdict without hesitation; and even this court, though it does not pass upon the weight of evidence, does examine its sufficiency, cv. and may on that ground tice. It had never been claimed that the jury are to determine what evidence is admissible or what witness competent, yet, if they are judges of the law, they should decide these often most important law points in a case. So as to the sufficiency of an indictment. Again the jury have a right to return a special verdict, even in a criminal case. Dowman's Case, 9 Coke, 126; 2 Inst. 425; Hargrave's note to Co. Litt. 1556. It is admitted that they must decide the facts, and, if they are judges of the law, then it is their duty to decide it, and they cannot transfer that duty to the court. The prisoner might demand his right that they should exercise their full functions. But all the authorities are to the contrary, and, if the finding of facts can be separated from the conclusion of law, the latter will be decided by the judges by their own views. "When a jury find the matter committed to their charge at large. large, and further conclude against law, the verdict is good, and the conclusion ill." Heydon's reverse without a new venire. Com. v. Flem Case, 4 Coke, 426. "The office of twelve men is no other than to inquire of matters of fact, and not to adjudge what the law is, for that is the office of the court, and not of the jury; and if they find the matter of fact at large, and further say that thereupon the law is so, where in truth the law is not so, the judges shall adjudge according to the matter of fact, and not according to the conclusion of the jury." Townsend's Case, 1 ing, 130 Pa. 163: Com. v. Knarr, 135 Pa. 47; Com. v. Philadelphia & R. R. Co. 135 Pa. 256; Com. v. Brown, 138 Pa. 452; Com. v. Ruddle, 142 Pa. 144, are a few recent instances of the exercise of this power. So the jury may disregard the law favorable to the prisoner. As was suggested by the learned judge at the trial of the case in hand, the jury had the legal power to find murder of the first degree, without regard to the element of premeditation; but no judge man shall be twice put in jeopardy for the would contend that they had the legal right to do so, and, if the evidence of premeditation was below the legal standard determined by the court as matter of law, not only would the trial court set aside the verdict, but this court would be bound to review the evidence, and determine if the legal elements of murder of the first degree existed in the case. Such powers and such duties in the courts are absolutely inconsistent with the right of the jury to be in any sense judges of the law. This is not new doctrine, but the long-established law of the State. Alexander Addison was one of the staunchest asserters of the rights of juries in the constitutional convention, and was one of the minority of three who voted against McKean's amendment to insert the words, "under the direction of the court, as in other cases:" but when, three years later, he presided in the oyer and terminer of Washington County, he laid down the law in these precise and forcible terms: "Whether the facts are so or so, it lies with you to determine, according as you believe the testimony. Supposing them so or so, whether they amount to murder or manslaughter is a question of law for the court to determine. You may find according as you believe or disbelieve the facts; and, comparing the facts with the rules of law, that the prisoner is guilty or not guilty, [of murder, or guilty of manslaughter; or you may find the facts specially, without drawing any conclusion of guilt or innocence, leaving it to the court to pronounce the construction which the law puts on the facts found; but you cannot, but at the peril of violation of duty, believing the facts, say that they are not what the law declares them to be, for this would be taking upon you to make the law, which is the province of the Legislature, or to construe the law, which is the province of the court." Pennsylvania v. Bell, Add. 160. And in Sherry's Case, and indictment for murder growing out of the riots of 1844, removed by certiorari from the quarter sessions of Philadelphia, and tried in the nisi prius in April, 1845, Justice Rogers charged the jury as follows: “You are, it is true, judges, in a criminal case, in one sense, of both law and fact; for your verdict, as in civil cases, must pass on law and fact together. If you acquit, you interpose a final bar to a second prosecution. The popular impression is that this power same offense, -a principle that attaches equal My conclusions on the general subject, therefore, are: (1) That the jury never were judges of the law in any case, civil or criminal, except incidentally, as involved in the mixed determination of law and fact by a general verdict. (2) Even if it could be conceded that they may have been so in primitive times, their right certainly ceased after the introduction of bills of exception and the granting of new trials, and admittedly has not existed in civil cases for centuries. (3) That there was not orginally, nor is now, any distinction in this respect between civil and criminal cases, the true rule as to both being that "the immediate and direct right of deciding upon questions of law is intrusted to the judges; in a jury it is only incidental." Hargrave's note to Co. Litt. 1556. for you to keep this distinction in mind, remembering that, while you have the physical power by an acquittal to discharge a defendant from further prosecution, you have no moral power to do so against the law laid down by the court. The sanctity of your conclusions in case of an acquittal arises, not from any inherent dominion on your part over the law, but from the principle that nolcases, as to the determination of the law, The idea of a difference in the rights and: functions of juries in civil and criminal |
