Kane v. Commonwealth

• Decision Date: 05 May 1879
• Citation: 89 Pa. 522
• Parties: Kane <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

89 Pa. 522

Kane versus Commonwealth.

Supreme Court of Pennsylvania.

March 26, 1879.

May 5, 1879.

March 26th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Quarter Sessions of Montgomery county: Of January Term 1879, No. 28.

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George N. Corson and George W. Bush, for plaintiff in error. —We admit that the best evidence of what is the law is what the court declares it to be, but we insist that the jury are the ultimate judges of the law and the facts in every criminal case, and this court has so decided since the adoption of the new constitution, in Hutchinson v. Commonwealth, 1 Norris 478.

The day on which elections are required to be held is from 7 o'clock A. M. to 7 o'clock P. M. No man can vote before or after that hour. No other portion of the twenty-four hours was election day, and therefore no law was violated by the defendant.

J. Wright Apple, for the Commonwealth.

Chief Justice SHARSWOOD delivered the opinion of the court, May 5th 1879.

None of the specifications of error are sustained except the fourth and ninth — the refusal of the court to charge as requested in the third point — and the instruction in the charge on the same subject. We have no doubt that the court were right that the word "day," as used in the eleventh section of the Act of April 12th 1875, Pamph. L. 42, includes the whole twenty-four hours of the day upon which an election is held.

We are of opinion that the learned judge committed an error in declining to affirm the defendant's third point, that the jury in the case were judges of the law and the facts. He admits that the law was as stated in the point until the Constitution of 1873, and the legislation in pursuance of it, gave the defendant in criminal cases a writ of error to the Supreme Court. We cannot agree that in consequence of these provisions the reason which led to the adoption of the doctrine ceased — and that it has ceased therefore to be the rule.

I do not propose an elaborate examination of the question. I find it done to my hand in a very learned and exhaustive opinion of Mr. Justice Hall, of the Supreme Court of Vermont, in the State v. Croteau, 23 Vt. 14, who traces the doctrine historically, and cites and comments upon all the cases, both English and American. There is a great variety of opinion in the courts of the United States and of the several states. While all concede that under the provisions of the Bill of Rights no man shall be twice put in jeopardy of life or limb for the same offence, that when the jury find in favor of the prisoner a verdict of not guilty it is final, it not being in the power of the court to grant a new trial on the motion of the Commonwealth and against the prisoner's consent, or of any higher court to reverse the judgment — it has been strongly contended that though the jury have the power they have not the right to give a verdict contrary to the instruction of the court upon the law; in other words that to do so would be a breach of their duty and a violation of their oath. The distinction between power and right, whatever may be its value in ethics, in law is very shadowy and unsubstantial. He who has legal power to do anything has the legal right. No court should give a binding instruction to a jury which they are powerless to enforce by granting a new trial if it should be disregarded. They may present to them the obvious considerations which should induce them to receive and follow their instruction, but beyond this they have no right to go. The argument in favor of their taking the law from the court is addressed very properly ad verecundiam. The court is appointed to instruct them and their opinion is the best evidence of what the law is. For my part I consider the following passage from the charge of Mr. Justice Baldwin in the United States v. Wilson, Baldwin 99, as a model to be followed by other judges when called on to instruct the jury upon the subject. "We have thus stated to you the law of this case under the solemn duties and obligations imposed on us, under the clear conviction that in doing so we have presented to you the true test by which you will apply the evidence to the case; but you will distinctly understand that you are the judges both of the law and fact in a criminal case, and are not bound by the opinion of the court; you may judge for yourselves, and if you should feel it your duty to differ from us, you must find your verdict accordingly. At the same time it is our duty to say, that it is in perfect accordance with the spirit of our legal institutions that courts should decide questions of law and the juries of fact; the nature of the tribunal naturally leads to this division of...