Territory of New Mexico v. Kee

OPINION. Lee, J. Embezzlement: verfic?:3pówer rect. , motion in arrest of-Several questions are raised by the record, but only one we think it necessary to consider, as, in our opinion, in criminal eases it is not in the province or power of the court trying the case to direct a verdict of guilty, no matter how strong, clear, and unimpeached the evidunce may be on the part of the prosecution, binder the constitutional provision which guaranties to persons accused of crime the right of trial by jury, an necused person has in every case where he has pleaded “not guilty” the absolute right to have the question of his innocence or guilt submitted to the jury, no matter what the state of the evidence may be. The right thus granted has been so fully recognized and carefully guarded by the courts that it has-been frequently held that it can not be waived by the prisoner, and that a trial before the court without a jury is erroneous, even where it takes place with the prisoner’s consent. The only case of respectable American authority holding the contrary proposition is the ruling of Justice Hunt, in the circuit court of the United States, on the trial of Susan B. Anthony for illegal voting at a federal election. U. S. v. Anthony, 11 Blatchf. (U. S.) 200. And the learned judge in that ease seems to have come to doubt the correctness of his ruling on the question, as subsequently, when the officers of the election, who were indicted together with Miss Anthony for the same offense, and in which substantially the same testimony was introduced on the trial, he submitted the case to the jury. In the case of U. S. v. Taylor, 11 Fed. Rep. 470, Judge McCrary carefully reviews the rulings of Justice Hunt in the Anthony case, and holds the contrary - doctrine. In concluding his opinion, he says: “It is now well settled in the federal courts that in civil cases, where the facts are undisputed, and the case turns upon questions of law, the court may direct a verdict in accordance with its opinion of the law, but the authorities which settle this rule have no application to criminal cases. In a civil case the court can set aside the-verdict, whether it be for the plaintiff or defendant, upon the ground that it is contrary to the law as given by the court; but in a criminal case, if the verdict is one of acquittal, the court has no power to set it aside. It would be a useless form for a court to submit a civil case, involving only questions of law, to the consideration of a jury, where the verdict, when found, if not in accordance with the court’s view of the law, would be set aside. The same result is accomplished by an instruction given in advance to find a verdict in accordance with the court’s opinion of the law. But not so in criminal cases. A verdict of acquittal can not be set aside, and therefore, if the court can direct a verdict of guilty, it can do indirectly that which it has no power to do directly. By his plea of not guilty the defendant must be understood as denying the truth of the information or indictment, and as not conceding the truth of what the witnesses for the government have sworn to. This is so, notwithstanding the fact that no witnesses for the defendant contradicted the statements of the witnesses for the prosecution. In this condition of the testimony it was the right of the jury to pass upon the credibility of the witness, even if unimpeached as to character, and to consider whether, upon applying all the tests of manner, clear or confused statement, prejudice, and accuracy of memory, they were to be believed. It was within the province of the jury to disbelieve the witnesses for the government. And even in civil cases, so far as I know, no judge has ever gone farther than to say, when the case was at all dependent upon oral testimony, that if the jury believed all the testimony they should, find for the plaintiff or defendant. The present case, in itself considered, is of little consequence, but the question involved is of far-reaching importance; for if the power to direct a verdict of guilty exists in this case, it exists and may be exercised in any criminal case, however important, and even if the punishment be death. In view of this, and especially in view of the opinion above cited of Mr. Justice Hunt, for whose judgment I entertain the highest respect, I have considered the case with great care. I have also consulted Mr. Justice Miller, who authorizes me to say that he concurs in the conclusion which I have reached.” The rule as stated by Justice McCrary is sustained in U. S. v. Gilbert, 2 Sum. 19, as it is there held that as soon as it judicially appears of record that the party has pleaded not guilty, an issue has arisen which courts are bound to direct to be tried by a jury. While it is a very old, sound, and valuable maxim in law that the court answer to questions of law, and the jury to facts, yet every day’s experience evinces that in criminal cases juries assume to be judges of the law as well as of the facts. And while it is the law and the theory that the court will instruct the jury as to the law in the case, and that it is the duty of the jury to receive the law from the court, yet it has never to our knowledge been claimed that if the jury disregarded the law as laid down by the court, and returned a general verdict of not guilty, the court can set it aside; and as said by McCrary, supra: “If this can not be done by an order after verdict, how could the court do substantially the same .thing by an instruction before verdict?” The action of the court is the same in either case; it is a decision by the court upon the law and facts that the accused is guilty. The court must determine both the law and the facts, whether it directs a verdict of guilty or sets aside a verdict of not guilty. McCrary cites in support of the doctrine laid down by him, and which, we think, is the correct one, the following authorities, some of which. go to the full extent, that the jury are exclusive judges of the law and the facts in criminal cases. Several of them are exactly in point, holding that a direction to the jury to convict is erroneous, notwithstanding overwhelming evidence of guilt. U. S. v. Battiste, 2 Sum. 243; Com. v. Porter, 10 Metc. (Mass.) 263; Com. v. Van Tuyl, 1 Metc. (Ky.) 1; U. S. v. Stockwell, 4 Cranch, C. C. 671; Stettinius v. U. S., 5 Cranch, C. C. 573; Montee v. Com., 3 J. J. Marsh. 132; Sims v. State, 43 Ala. 33; U. S. v. Hodges, 2 Wheeler, Crim. Cas. 477; U. S. v. Wilson, Baldw. 78; U. S. v. Fenwick, 5 Cranch, C. C. 562; U. S. v. Greathouse, 2 Abb. (U. S.) 364; 4 Bl. Comm. 361; Tucker v. State, 57 Ga. 503; Huffman v. State, 29 Ala. 40; Perkins v. State, 50 Ala. 154. This court, believing the law to-be expressed in the authorities referred to-cited, holds that the court below erred ' in the to find the defendant guilty, and in overruling the motion in arrest of judgment. The judgment is therefore reversed, and the cause remanded for such action as may be properly-taken in accordance with the views herein expressed. O’Brien, C. J., and MoFie, Seeds, and Freeman,. JJ., concur.