"In the trial of all criminal cases, the jury
shall be the judges of law as well as fact, and on
such trial there shall be a bill of exceptions and
appeal to the ruling of the court, as to the admis-
sibility of evidence, the same as in civil cases,"
Mr. BOWIE asked for a division of the question.
It had always been his understanding that not
only in regard to the admissibility of evidence,
but in regard to the nature of the offence charged.
the jury were the judges of law and of fact. If
a bill of exceptions was to lie to the court of ap-
peal, it seemed to imply that the judge had a
right to decide questions of law, and with regard
to the admissibility of evidence. This was a
principle which he wholly repudiated. In his
own district the judge had always maintained the
doctrine that the jury were to decide; and even
in questions arising under the admissibility of
evidence, he had always positively refused to
grant instructions to the jury. He would give
his advice, but it was always in the form of ad-
vice. He (Mr. B.) utterly denied that the court
had the right to instruct the jury upon points of
evidence. If the jury did not obey the instruc-
tions, the judge would set the verdict aside. Al-
though no court had been found to set aside a
verdict where parties had been acquitted, yet as
all verdicts were under the control of the court,
they had the right to do so. The defendant was
not the only party interested. The whole people
of the State were interested that the guilty should
not escape. All verdicts were under the control
of the court. No harm could be done by leaving
the law precisely in its present form. If the
judge was to be the exclusive judge of the admis-
sibility of testimony, the jury might as well be
discharged, and leave the court to settle the
whole question. The rights of the jury bad been
invaded by the modern construction, and he
wished to see them brought back to the old common
law of England making them judges of law
and of fact.
Mr. CONSTABLE asked how a trial could pro-
gress unless there was some tribunal to regulate
the admissibility of evidence? He thought it ne-
cessary for the court to decide upon it before it
went to the jury.
Mr. BOWIE said that was the very thing he
complained of. Judge Stephens, of his own ju-
dicial district, always insisted that he could only
give his advice upon it.
Mr. DORSEY suggested that if there was no
power in the judge to rule out evidence, witnesses
might be brought to give hearsay testimony. He
had never heard such an idea before, and his
intercourse with Judge Stephens seemed to him
ilreconcilable with the principle ascribed to him
by the gentleman from Prince George. The
gentleman could not have meant that the evidence
must go to the jury, and that the judge could af-
terwards only give his advice upon it.
Mr. BOWIE said:
That he did mean that Judge Stephens invaria-
bly said that he had no right to instruct the jury;
and that he always let the evidence go to
the jury. if asked his opinion he would give
it. |
MR. BRENT was in favor of the bill of excep-
tions, giving equal benefit to the State and the
accused. He had never before heard that the
court were not the exclusive judges in criminal
cases of the admissibility of evidence. The jury
would always wish to hear the evidence, and
thus their minds would become loaded with a
great amount of legal evidence they could not
throw off.
He differed with the gentleman from Prince
George's also with regard to the right to set
aside a verdit of acquittal. The judges had
uniformly decided that they had no such power.
It was contrary to the provision of the Constitu-
tion of the United States that no man should be
"subject for the same offence to be put twice in
jeopardy of life or limb." If acquitted once, he
could plead that acquittal, if charged a second
time.
Mr. CONSTABLE read the decision of Judge
Buchanan upon the right of the judge upon the
admisibility of evidence,
Mr. THAWLEY moved the previous question,
and being seconded,
The question was taken on the first branch of
the amendment, being in these words;
"In the trial of all criminal cases, the jury shall
be the judges of law as well as fact."
Determined in the affirmative.
The question was then taken on the second
branch of the amendment, being as follows:
"And on such trial there shall be a bill of ex-
ceptions and appeal to the ruling of the court, as
to the admissibility of evidence, the same as in
civil cases."
Mr. BOWIE moved that the question on this
branch of the amendment be taken by yeas and
nays,
Which being ordered,
Appeared as follows:
Affirmative—Messrs. Sellman, Howard, Buch-
anan, Bell, Welch, Ridgely, Lloyd, Sherwood, of
Talbot, John Dennis, Constable, McCullough, Miller,
McLane, Spencer, Shriver, Biser, McHenry,
Magraw, Nelson, Carter, Thawley, Gwinn,
Brent, of Baltimore city, Ware, Fiery, Brewer,
Weber, Smith, Parke, Ege, Cockey and Brown
—31.
Negative— Messrs. Blakistone, Pres't, p. t.,
Morgan, Dent, Hopewell, Ricaud, Lee, Cham-
bers, of Kent, Donaldson, Dorsey, Wells, Ran-
dall, Kent, Weems, Brent of Charles, Dashiell,
Williams, Goldsborough, Eccleston, Phelps,
Bowie, Tuck, Sprigg, McCubbin, Grason,
George, Wright, Dirickson, McMaster, Hearn,
Fooks, Jacobs, Thomas, Annan, Stephenson,
Stewart, of Caroline, Hardcastle, Schley, Neill,
John Newcomer, Harbine and Hollyday—44.
So the second branch of the amendment was
rejected.
Mr. BOWIE moved further to amend the report
of the committee by add ing at the end thereof
as an additional section the following:
"The rate of interest in this State, shall not
exceed six per cent per annum, and no higher
rate shall be taken or demanded, and the legisla- |
