The proof that she voted would still be
_evidence_, and _mere evidence_, and a judge has no power whatever to
deal with evidence. He can deal only with the law of the case, and the
jury alone can deal with the facts.
But we will go further than this. We will suppose that in New York, as
in some of the States, a defendant in a criminal case is allowed to
testify, and that Miss Anthony had gone upon the stand as a witness, and
had stated distinctly and unequivocally that she did in fact vote as
charged. We must not forget that, if this had actually occurred, she
would at the same time have stated that she voted in the full belief
that she had a right to vote, and that she was advised by eminent
counsel that she had such right; a state of the case which we have
before referred to as presenting a vital question of fact for the jury,
and which excludes the possibility of the case being legally dealt with
by the judge alone; but this point we are laying out of the case in the
view we are now taking of it. We will suppose that Miss Anthony not only
testified that she voted in fact, but also that she had no belief that
she had any right to vote; making a case where, if the Court should
hold as matter of law that she had no right to vote, there would seem to
be no possible verdict for the jury to bring in but that of "guilty.
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