MISCELLANEOUS. 161

Sec. 4. If at any election directed by this Constitution, any two or more
candidates shall have the highest and an equal number of votes, a new elec-
tion shall be ordered by the Governor, except in cases specially provided for
by this Constitution.

Sec. 5. In the trial of all criminal cases, the jury shall be the Judges of
Law, as well as of fact.

In view of this section, any instructions given the jury are but advisory and in
no manner binding except as to questions as to what shall be considered evidence.
The court cannot be required by counsel or jury to give instructions either on the
law, or on the legal effect of evidence. Bloomer v. State, 48 Md. 538; Broil v. State,
45 Md. 359; Wheeler v. State, 42 Md. 570; Esterline v. State, 105 Md. 636; Jules v.
State, 85 Md. 313; Ridgely v. State, 75 Md. 513; Goldman v. State, 75 Md. 623;
Beard v. State, 71 Md. 279; Baltimore, etc., Co. v. State, 63 Md. 582.

The court has the right to advise the jury in a criminal case, although it cannot
be required to do so. If the instruction given, however, is erroneous and the jury
has followed it to the plain injury of the traverser, the case may be reversed on this
ground. Cochran v. State, 119 Md. 552; Ridgeley v. State, 75 Md. 513; Beard v.
State, 71 Md. 281.

The jury has no power in criminal cases to pass on the constitutionality of a lew;
hence that question may not be argued to the jury. This section is merely declara-
tory and does not alter the pre-existing law regulating the powers of the court and
jury in criminal cases. Franklin v. State, 12 Md. 249 and 245; Sparf v. United
States, 156 U. S. 152 (dissenting opinion); Bell v. State, 57 Md. 120.

Where a party elects to be tried by a court 'without a jury, the court is substi-
tuted for the jury, and has the same duties and functions in passing upon the guilt
of the accused. League v. State, 36 Md. 264.

The act of 1878, ch. 415, sec. 10, conferring jurisdiction upon justices of the peace
to try and commit to the house of correction vagrants and disorderly persons, is
constitutional. State v. Glenn, 54 Md. 599.

The court in criminal cases, as in civil cases, determines the admissibility of tes-
timony and the competency of witnesses. Jules v. State, 85 Md. 313.

The court may state to the jury the legal effect of evidence. Bell v. State, 57
Md. 120.

The legal effect of evidence is a question for the jury under this section. World
v. State, 50 Md. 55.

See art. 21 of the Declaration of Rights, and notes to art. 59, sec. 4, An. Code.

Sec. 6. The right of trial by Jury of all issues of fact in civil proceedings
in the several Courts of Law in this State, where the amount in controversy
exceeds the sum of five dollars, shall be inviolably preserved.

The workmen's compensation act of Maryland does not violate this section—see
notes to art. 101, sec. 14, An. Code. Solvuca v. Ryan & Reilly Co., 131 Md. 281.

The legislature evidently intended in adopting art. 101 of the Code, " Workmen's
Compensation, " to secure to the party appealing from the decision of the commis-
sion the benefit of this section. Frazier v. Leas, 127 Md. 577.

Art. 75, sec. 74, An. Code, providing that when a new trial was ordered it might
be stayed until the costs already incurred were paid, held not to violate this section
or art. 19 of the Declaration of Rights. This section must receive a reasonable con-
struction. Art. 75, sec. 74, may be invoked either by the plaintiff or by the de-
fendant. The " jury trial " meant by this section is the historical jury trial as it
existed when the Constitution was adopted. Knee v. City Passenger Ry. Co., 87
Md. 624.

Sec. 239 of art. 16 of the An. Code providing that where property is resold at the
risk of a defaulting purchaser, the court may direct any deficit to be paid by such
purchaser, held not to violate this section. There is no reference in this section to
a trial of an issue of fact in another jurisdiction, a court of equity for instance
Capron v. Devries, 83 Md. 224.

An ordinance of the city of Baltimore (passed in pursuance of the act of 1878,
ch. 143), which provided that the city court might consolidate appeals in cases in-
volving the condemnation of land for the opening of streets, held invalid under this
section. Friedenwald v. Baltimore, 74 Md. 124.

The right of removal of a case may be surrendered or waived; waiver made out
Caledonian Fire Ins. Co. v. Traub, 86 Md. 93.