to be found in which it has ever been held as a
doctrine of this State that the jury could not
give a verdict in a criminal case always as
they please. The fact is established that they
have practically all the power which it is de-
sirable that they should have. The language
of the section is :
" In the trial of all criminal cases, the jury
may be the judges of law as well as fact."
With regard to the change of the language,
I will only say as a lawyer, that " may " in
that connection, is just as imperative as
"shall." I suppose every lawyer in the
house will confirm that idea. In all legal
proceedings, where there is nothing to show
the contrary, these terms are considered as
equivalent. I think the interests of the State,
in its judicial department, especially in its
criminal jurisdiction, will be promoted, mis-
chiefs will be obviated, difficulties will be ob-
viated, and in all respects, benefits will result
from striking oat the sixth section.
The amendment to substitute "shall" for
'' may" was adopted.
Mr. CHAMBERS moved to strike out the
. entire section.
Mr. MILLER. I agree with a great deal that
has been said by the gentleman from Kent
(Mr. Chambers) with reference to this provis-
ion contained in our present constitution, and
sought to be incorporated in the one we are
about to offer to the people for their sanction.
The system of trial of criminal cases in this
State has always been different from that In
most of the northern States. A criminal is
brought to the bar here; his counsel are em-
ployed; and the State's attorney represents
the State. Upon questions of the admissibili-
ty of evidence, the judge decides; and that is
the only thing upon which the judge in our
State does decide.
Mr. CHAMBERS. Or ever did.
Mr. MILLER continued: But in most of the
northern States, after the counsel have closed
on both sides, the judge "sums up," as they
call it, to the jury, and gives his views both
of the evidence and of the law. Now under
this provision of the constitution we may get
rid perhaps of a good deal of difficulty. If
the judges, with this restriction taken away,
should undertake to charge the jury, and
state to the jury what the law is in reference
to the crime of which the accused stands
charged, the accused would have the right to
except to that charge, and to take it before
the higher tribunals to see whether the court
has correctly pronounced the law of the case
or not. We have never had in this State,
inch case? brought to the court of appeals.
Our criminal appeals are all reduced to error
of the record itself, matters in the indictment,
demurrers to the indictment, or something of
that kind. I do not know but a case in
which the judge has undertaken to charge the
jury, and has given instructions to the jury
to which the criminal has taken exception,
61 |
might go up to the court of appeals. This
provision has prevented that being done, and
we have had no difficulty of that kind.
Mr. CHAMBERS. No exception lies but by
statute; and the statute expressly says that
exceptions shall lie in civil cases.
Mr. MILLER. I am perfectly aware of that;
but I very much doubt whether it would not
be the right of the criminal, under the existing
statute, if the judge should undertake to give
his views of the law to the jury, and should
lay down the law wrongly, to take exception
to it, and to bring it up to the court of ap-
peals. The circuit judges may be mistaken
with regard to their construction of the law as
well as the lawyers who are arguing it for
either side before the jury. If you give the
judge the power to charge the jury upon the
law, the lawyer upon either side differing as
to the construction of the law, then I say
that the criminal ought in all cases to have
the right of appeal He ought not, for his life
or his liberty, to be left to the discretion and
the charge of the judge without an appeal to
the court of appeals. At present, in ' the ar-
gument before the jury, we have a right ağ
lawyers defending, or as prosecutors prosecu-
ting, to say that every construction of the law
is say so, that the law means this and the law
means that. It has been decided by the court
of appeals that we can argue before the jury
that a law is unconstitutional. That ques-
tion is not beyond the power of the jury.
Let a statute law beğ passed in regard to any
offence, as it was passed in this town some
years ago, prohibiting the selling or giving of
spirituous or intoxicating liquors to a minor or
person of color, or anything of that kind, and
there are expressions in that law about which
the lawyers may very well differ. I say then,,
in such a case as that, on the ground of mer-
cy to the criminal, and the indulgence which
the law allows in such a case as that, the jury
should be the judges of the law as well as of
the fact.
I know it has always been theĞ practice in
this State for the jury to render a general ver-
dict. But let me put a case which frequently
occurs. There is no earthly dispute about
the facts; not the least in the world. The
facts are proved by undisputed testimony, and
no human being on either side would doubt
them. The whole question is whether theĞ
law was intended to cover that state of facts.
In such a case as that, this provision of the
constitution interposes and says that that
matter shall beĞ decided by the jury and not
by the court. The State has all the advan-
tage which it needs in such a case as that. It
hag the closing argument in all criminal cases.
The State's attorney can present his views of
the law as well as of the facts to the jury in
his closing argument, and review all that has
been said by the counsel for the defence; aĞ
that the case cornea fairly and squarely before
the jury. |
