Batre v. State , 18 Ala. 119 ( 1850 )

DABGAN, C. J.

In framing an indictment upon a statute creating an offence, it is not always enough to charge the offence in the language of the act, for such a charge may not allege the fact or facts which constitute the offence, which must always be done, whether the offence be created by statute, or whether it existed at the common law. — Turnipseed v. The State, 6 Ala. 664; State v. Brown, 4 Port. 413; State v. Worrell, 12 Ala. 732; Williams v. The State, 15 ib. 260. For instance, in an indictment upon a statute against usury, it would be insufficient to charge- that the party took more than lawful interest merely, but the particular facts in. which the offence consists must be alleged. But where a statute creates an offence, and describes its constituents, or the facts that constitute the offence, then It will be sufficient to charge the offence in the language off the apt. — State v. Duncan, 4 Ala.; 9 Port. 240; State v. Click, 2 ib. 26; Turnipseed v. The State, 6 ib. 664 ; 15 ib. 260.

Testing the indictment by this rule, we think, it is sufficient. It alleges that the solicitor sent a summons in his name to the defendant to> appear instwnter before the grand jury, and give evidence of any gaming in violation of the laws of the State; that the summons was served on him by the sheriff'; and that i'n obedience thereto be-appeared before the grand jury, but refused to testify. These are-the constituents of the offence created by the act, and they are alleged in proper form. There was no error in overruling the demurrer.

In the progress of the trial, a bill of exceptions was sealed by the judge, which shows that the defendant, by his counsel, requested the court to charge the jury, that they had the right to judge of the law, as well as of the facts of the case, and whether, in the exercise of this right, they would distrust the court, or whether they would receive the law from the-court, must be left to their own discretion under the sanction of their oath. This charge the court refused to give. In criminal, as well as in civil Cases, the jury may find either a general or a special verdict. If they return a special verdict in a criminal case, they should set forth all the facts and circumstances ascertained by them to be true, and pray the judgment of the court, whether, for instance, they constitute the crime of murder, or manslaughter, or no crime at all. Blackstone says that this is where they doubt the matter of law, and choose ,.to leave it to the determination of the court; but they have an unquestionable right of determining upon all the circumstances of the case, if they think proper so to do, at the hazard of a breach of their oath. — 4 Blackstone’s Com. 361. — It is out of this right to return a general verdict, which at ihe common law in cases of felony and treason was beyond the control of the court, that the idea has prevailed to a considerable extent, that the jury in criminal cases were the judges both of the law and the facts. But we are satisfied, after a deliberate examination of this question, independent of our own decisions upon the subject, that the jury are not the constituted judges of the law' in any case, unless they be made so by statute. The whole theory of our criminal jurisprudence disproves it. They cannot judge of the competency of evidence and order its admission in opposition to the opinion of the court. The defendant has, too, an unquestionable right to ask the court to instruct the jury on any point in the cause that may be favorable to him, and it is the bounden duty of the court to give the instructions, if they be in accordance with law; and should the court refuse, under our recent statute, the prisoner may except, and the Supreme Court, upon a writ of error, would be bound to reverse the conviction for such refusal. So too the judge, after he has decided a point of law that he deems novel and difficult, may certify it to the Supreme Court, which will either reverse or affirm the decision of the court below, as they may find it to be in accordance with, or opposed to the law. This view', to our mind, is conclusive, that the judge is the only person legally authorised to determine on the law7. This is the conclusion attained by this court in the case of Pierson v. The State, 12 Ala. 149, which we think is sustained, not only by reason, but also by the best authorities. — U. States v. Battiste, 2 Sum. 240; Townsend v. The State, 2 Blackf. 151; Pierce v. The State, 13 N. H. Rep. 536; Montgomery v. The State, 11 Ohio, 424; Levy v. Milne, 4 Bing. 195. We know it has been said by courts of respectable authority, that the jurors in a criminal case are the judges of the law as well as of the facts, but we think this opinion arises from not distinguishing between the powers that a jury may assume to exercise, and the duties confided to them by law. The law does not constitute them the judges, yet they may assume the responsibility of rendering a verdict contrary to the law, as given to them in charge by the court, and if they do so in a criminal case, and acquit the prisoner, their verdict is conclusive, for it is not under the control of the court. This power, however, that they may exercise upon their own responsibility, does not constitute them judges of the law in a legal sense, but on the contrary, in a legal point of view, they violate the law in rendering a verdict contrary to the rules laid down to them by the court. As the jury are not in legal contemplation judges of the law, it cannot be said that they have the legal right to disregard the instructions of the court. They may assume to do so, but this assumption of power on their part cannot alter the law, or constitute them judges. The court, therefore, did not err in refusing to give the charge requested by the defendant, for that charge assumes that the jury had the legal right, according to law, to disregard the instructions of the court. This right they have not. They can only assume to exercise it, if they will,, upon their own responsibility.

After the evidence for the State was closed, the defendant moved the court that he be permitted to render his excuse for refusing to testify. This the court refused. Asw’e understand the question, the motion was, to permit the defendant to give evidence to the jury himself, showing his excuse. We know of no rule of practice that would authorise this. True, it has been the practice to permit defaulting witnesses to excuse themselves upon their own testimony, but this is always done by an application to the court, which hears and determines upon the excuse offered. But this practice will not authorise the defendant to give evidence before the jury in bis own favor upon the trial of an indictment founded on this act. Whether it would be competent for the court to hear and determine upon the sufficiency of the excuse established by the testimony of the party, after an indictment is found against him, we will not decide, because the question is not raised by the record. Let the judgment be affirmed.