The question is one ordinarily of little practical importance, but it
here helps to make clear the very point we are discussing. Here the
judge laid down the law, correctly, we will suppose, certainly in terms
that left the jury no doubt as to what he meant; and here, by all the
authorities, the jury ought, as a matter of proper deference in one
view, or of absolute duty in the other, to have adopted the view of the
law given them by the judge. But it was in either case the _jury only_
who could apply the law to the case. The judge could _instruct_, but the
jury only could _apply the instruction_. That is, the instruction of the
judge, no matter how authoritative we may regard it, could find its way
to the defendant _only through the verdict of the jury_.
It is only where the confession of facts is _matter of record_, (that
is, where the plea filed or recorded in the case _admits_ them), that
the judge can enter up a judgment without the finding of a jury. Thus,
if the defendant pleads "guilty," there is no need of a jury finding him
so. If, however, he pleads "not guilty," then, no matter how
overwhelming is the testimony against him on the trial, no matter if a
hundred witnesses prove his admission of all the facts, the whole is not
legally decisive like a plea of guilty; but the question still remains a
question of fact, and the jury alone can determine what the verdict
shall be.
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