"
Even in this case, which would seem to resolve itself as much as
possible into a mere question of law, there is yet no power whatever on
the part of the judge to order a verdict of guilty, but it rests
entirely in the judgment and conscience of the jury what verdict they
will bring in. They may act unwisely and unconscientiously, perhaps by
mere favoritism, or a weak sympathy, or prejudice, or on any other
indefensible ground; but yet they have entire _power_ over the matter.
It is for them finally to say what their verdict shall be, and the judge
has no power beyond that of instruction upon the law involved in the
case.
The proposition laid down by the writer before referred to, that "in
jury trials all questions of law are decided by the judge," is not
unqualifiedly true. It is so in civil causes, but in criminal causes it
has been holden by many of our best courts that the jury are judges of
the law as well as of the facts. Pages could be filled with authorities
in support of this proposition. The courts do hold, however, that the
judges are to _instruct_ the jury as to the law, and that it is their
duty to take the law as thus laid down. But it has never been held that
if the jury assume the responsibility of holding a prisoner not guilty
in the face of a charge from the judge that required a verdict of
guilty, where the question was wholly one of law, they had not full
power to do it.
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