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CHAPTER XV.

QUESTIONS OF LAW AND FACT.

§ 89. Preliminary View.

90. The Jury as Judges of the Law and the Fact.

91. Decisions Considered.

92. Plea of not Guilty Raises a Question of Fact.
93. Evidence of Habit is a Question of Fact.
94. The Result Stated.

§ 89. Preliminary View.-We consider it a well settled principle and rule, lying at the foundation of jury trial, admitted and recognized ever since this system was adopted as an established and settled mode of proceeding in courts of justice, that it is the proper province and duty of judges to consider and decide all questions of law which arise, and that the responsibility of a correct decision is placed finally on them; that it is the proper province of the jury to weigh and consider evidence, and decide all questions of fact, and that the responsibility of a correct decision in the first instance is placed upon them. The safety, efficacy and purity of jury trial obviously depends upon the steady maintenance and practical application of this principle. It would be alike a usurpation of authority and violation of duty, for a court, on a jury trial, to decide authoritatively on the questions of fact and for the jury to decide ultimately and authoritatively upon the questions of law. In deciding upon this question of fact however, the jury are at liberty to consider that in the vast majority of cases (except as otherwise provided by statute) the evidence of one witness who is entitled to credit is sufficient to prove any fact.

If the jury are the sole judges of the law without any aid from the court in its exposition and application, then whenever the court instructs either for the prosecution or the accused, it invades the province of the jury. Whilst accused insists that the province of the jury is invaded, he would not hesitate to demand a new trial if the jury had found against the law as given to them by the court. Hence, he would, in such case, appeal from the jury to the court, upon the grounds that the court ultimately, and not the

jury, has the right to reverse the decision of the jury as to the law of the case, and because the court has the right to inform the jury as to the law and to enforce its decisions when disregarded, and against the accused, in criminal cases, as well as in civil cases. "It is not unreasonable to require the jury to say they know the law better than the court before they disregard its instructions. See Schnier v. People, 23 Ill. 17; Fisher v. People, 23 Ill. 283, and Mullinix v. People, 76 Ill. 211, where this form of instruction is approved and sanctioned." Anderson v. State, 104 Ind. 467, 5 Am. Crim. Rep. 601, note.

90. The Jury as Judges of the Law and the Fact.The principle receives sturdy support in numerous cases that "in all criminal prosecutions, the jury must have the right to determine the law and the facts."

In the case of Barker v. State, 48 Ind. 163, Buskirk, J., who wrote the opinion, quoted from Graham & Waterman on New Trials, with approval, the following: "When there is testimony which has any legal effect in a cause, it would be error in the court to determine the weight of it, and the fact which it did or did not ascertain. But whether evidence tends to prove anything pertinent to the issue, is a question for the court; and if there be no testimony that ought to have any legal effect, it is not error for the court to inform the jury that it does not prove what it does not tend to prove."

In the case of Brooks v. State, 90 Ind. 428, the court, in commenting upon the instructions in that case, said: "Under our system of practice, the court may sum up the evidence and submit hypothetical cases to the jury, but to do either of those things thoroughly and well usually requires very great care. It is a hazardous proceeding for the court, either directly or through the medium of hypothetical cases, to attempt any comments upon the evidence, and particularly to express any opinion upon it beyond an intimation or statement as to what certain evidence may tend to prove. The safer way is for the court to announce general principles applicable to the salient points of the evidence, and leave all inferences from facts apparently proven, or which the evidence tended to establish, to the jury."

The provision that the jury shall have the right to determine the law and the facts evidently means that the jury have the right to determine all questions of law applicable to such matters as

they are required to consider in making up their verdict, but cannot be rightfully construed to mean that the jury are the sole judges of the law in every respect in a criminal cause. The court judges of the sufficiency of an indictment under the law. It decides all questions of law arising upon the admissibility of evidence, and has the power to grant a new trial when the jury have erroneously determined the law injuriously to the defendant. The judge, too, is required to instruct the jury upon all matters of law necessary for their information in the rendition of a verdict in a criminal cause. Thus, instructing the jury involves, in a qualified sense, at least, the exercise of a judgment upon all matters of law concerning which the judge must give information to the jury. The jury are, consequently, not, strictly speaking, the sole judges of the law in all its relations to a criminal case. Anderson v. State, 104 Ind. 467.

§ 91. Decisions Considered.-All the authorities tend to the same result. "It is the duty of the jury to act upon the facts. It is the duty of the court to decide the law. The facts being specially found by the jury, it is the duty of the court, not of the jury, to pronounce the judgment of guilty or not guilty. The facts being fully conceded, it is the duty of the court to announce and direct what the verdict shall be, whether guilty or not guilty. Therefore, I cannot doubt the power and the duty of the court to direct a verdict of guilty, whenever the facts constituting guilt are undisputed." States v. Anthony, 11 Blatchf. 200, opinion by Hunt, J.

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In the case of People v. Bennett, 49 N. Y. 137, the court of appeals of the state of New York, through its Chief Judge, uses the following language: "Contrary to an opinion formerly prevailing, it has been settled that the juries are not judges of the law, as well as the facts, in criminal cases, but that they must take the law from the court. All questions of law arising during the trial are to be determined by the court, and it is the duty of the jury to regard and abide by such determination."

In United States v. Anthony, supra, the question was, whether the court had power to direct a verdict of not guilty; and the Chief Justice says, the rule results from the principle that the jury must take the law from the court. The duty of the jury to take the law from this source is precisely the same whether it is favorable or unfavorable to the accused.

As illustrative of another phase of the same subject, it is com

petent to refer to the familiar rule that it is not the province of the court to instruct the jury that insanity is a physical disease. It is a question of fact, to be determined from the evidence, whether insanity exists, and what its character and extent is; and not one to be determined as a matter of law by the court. Grubb v. State, 117 Ind. 277. The province of the court is to state the general rules of law to the jury, and it has no right to charge, as matter of law, that insanity is a physical disease of any particular organ of the body. It is not safe to take from works upon medical jurisprudence definitions of insanity, for they are, in many instances, merely speculative opinions, and they are also opinions upon a subject on which it is impossible to reconcile the discordant views of theoretical writers. It must, in each particular case, be a question of fact to be determined from the evidence whether there was insanity, and what was its cause and character. Plake v. State, 121 Ind. 433.

It is quite unnecessary to add that if the evidence is of such a character as to create a reasonable doubt whether the accused was of unsound mind at the time the crime was committed he is entitled to a verdict of acquittal. Polk v. State, 19 Ind. 170, 80 Am. Dec. 382; Bradley v. State, 31 Ind. 492; McDougal v. State, 88 Ind. 24.

A masterly analysis and review of this subject by Chief Justice Shaw will be found in Com. v. Anthes, 5 Gray, 185. There are less elaborate but equally forcible statements of the theory by Story, J., in United States v. Battiste, 2 Sumn. 240; by Curtis, J., in United States v. Morris, 1 Curt. C. C. 23; by Gilchrist, J., in Pierce v. State, 13 N. H. 536; and by Shaw, Ch. J., in Com. v. Porter, 10 Met. 263. See also Montgomery v. State, 11 Ohio, 427; Montee v. Com. 3 Marsh. J. J. 149; Townsend v. State, 2 Blackf. 151; Pierson v. State, 12 Ala. 153; Hardy v. State, 7 Mo. 607; Nels v. State, 2 Tex. 280; Brown v. Com. 86 Va. 466; and lastly in England by Mr. Hargrave in his note to Coke Litt. 155 b.

In People v. Dick, 32 Cal. 216, the court says: "It is better for the court, in charging the jury in a criminal case, to avoid assuming any material fact as proved, however clear to the mind of the court such fact may seem to be established, because it is the province of the jury, unaided by the judge, to say whether a fact is proved or otherwise."

And in State v. Whitney, 7 Or. 386, Kelly, Ch. J., said: "It is the exclusive province of the jury to determine questions of fact. They and they only have a right to judge of the credibility of witnesses, and the weight and effect of their testimony. And it has always been held to be an erroneous instruction when the court assumed any controverted fact to be proven, instead of submitting to the jury the question whether or not it has been established by the testimony before them." State v. Mackey, 12 Or.

154.

§ 92. Plea of not Guilty Raises a Question of Fact.-The plea of not guilty is a denial of every material allegation in the indictment. All matters of fact, tending to establish a defense, may be given in evidence under the plea of not guilty. If the defendant refuse to answer an indictment by demurrer or plea, a plea of not guilty must be entered. N. Y. Code Crim. Proc. $$ 338, 339, 342.

93. Evidence of Habit is a Question of Fact.-The general rule forbids the opinions or conclusions of witnesses from being given in evidence; but, whether or not a person possesses a certain habit, is rather a question of fact than of opinion or conclusion. It respects a person's condition, as to which witnesses are often allowed to speak without being confined to a narration of the particulars which go to constitute the condition. Thus, under proper circumstances, a common witness may testify directly as to sanity, solvency or insolvency; as to a person being sick or in pain; and, as in People v. Eastwood, 14 N. Y. 566, whether a person was drunk or sober; whether a horse was a safe and kind horse. See Sydleman v. Beckwith, 43 Conn. 13, where is quite a collection of instances where common observers, not experts, may give their opinions. In Stanley v. State, 26 Ala. 26, and Elam v. State, 25 Ala. 56, the allowance of precise direct evidence of intemperate habits was sustained. Gallagher v. People, 120 Ill.

179.

Whether a person possesses a certain habit, is a question of fact, to which any person knowing may testify. Abbott, Trial Ev. 778; Stanley v. State, and Elam v. State, supra; Spear v. Drainage Comrs. 113 Ill. 634; Bank of Middlebury v. Rutland, 33 Vt. 414; Sydleman v. Beckwith, and People v. Eastwood, supra; Dahmer v. State, 56 Miss. 789; Mapes v. People, 69 Ill. 530.

§ 94. The Result Stated.-Lastly, it should be remembered

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