People v. Bruner

• Decision Date: 18 February 1931
• Docket Number: No. 20603.,20603.
• Citation: 343 Ill. 146,175 N.E. 400
• Parties: PEOPLE v. BRUNER.
• Court: Illinois Supreme Court

343 Ill. 146

175 N.E. 400

PEOPLE

v.BRUNER.

No. 20603.

Supreme Court of Illinois.

Feb. 18, 1931.

Error to Criminal Court, Cook County; Harry M. Fisher, Judge.

Ben Bruner was convicted for robbery while armed with a dangerous weapon, and he brings error.

Affirmed.

DUNCAN, J., dissenting.David A. Riskind, of Chicago (Arthur J. Goldberg and Norman Asher, both of Chicago, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., and John A. Swanson, State's Atty., of Chicago (John J. Healy and Walter Bachrach, both of Chicago, of counsel), for the People.

DE YOUNG, J.

An indictment was returned in the criminal court of Cook county charging Ben Bruner with robbery while armed with a dangerous weapon. A jury found him guilty, and he was sentenced to the penitentiary. He prosecutes this writ of error for a review of the record.

Upon the trial, counsel for the plaintiff in error requested the court to give the jury the following instruction: ‘The court instructs the jury that they are the judges of the law as well as of the facts in the case, and if they can say upon their oaths that they know the law better than the court does, they have a right to do so; but before assuming so solemn a responsibility, they should be assured that they are not acting from caprice or prejudice, that they are not controlled by their wills or their wishes, but from deep and confident conviction that the court is wrong and that they are right. Before saying this upon their oaths, it is their duty to reflect whether, from their study and experience, they are better qualified to judge of the law, than the court; if, under all the circumstances, they are prepared to say that the court is wrong in its exposition of the law, the statute has given them the right.’ This instruction was refused, but instead of it, upon the motion of the state's attorney, the jury were instructed that: ‘The jury is the sole judge of the facts in the case, the credibility of the witnesses, and of the weight to be given to their testimony. And, in anything that the court may have said throughout the trial or anything that the court may say in these instructions, the court has not intended and he does not now intend to express any opinion upon the facts of the case, on the credibility of the witnesses, or the weight to be given to their testimony. On the other hand, the court is the sole judge of the law in the case, and it becomes the duty of the dury to follow the law as it is given to it by the court in his instructions. You have no right to disregard it, or disregard any portion thereof, but you are bound to take the whole of it as it is given to you by the court and apply it to this case.’

The refused instruction was based upon section 11 of division 13 of the Criminal Code (Cahill's Rev. St. 1929, p. 998, c. 38, par. 764; Smith-Hurd Rev. St. 1929, p. 1068, c. 38, § 741), which provides that ‘juries in all criminal cases shall be judges of the law and the fact.’ This statutory provision was originally enacted in 1827 as a part of section 176 of the act entitled ‘An act relative to criminal jurisprudence’ (Revised Code of Laws of 1827, p. 163), and continuously since has been a part of the Criminal Code of this state. The defendant in error justifies the refusal of the first and the giving of the second instruction on the ground that the statute which the plaintiff in error invokes contravenes (a) section 5 of article 2 of the Constitution of 1870, that the right of trial by jury as heretofore enjoyed shall remain inviolate, and (b) the third article of the Constitution which distributes the powers of the state government among the legislative, executive, and judicial departments, and prohibits the exercise, except as expressly directed or permitted, by any person or collection of persons constituting one of these departments, of any power properly belonging to either of the other departments. The trial court's rulings with respect to these instructions form the basis of the only errors assigned and relied upon by the plaintiff in error for a reversal of the judgment.

Section 6 of article 8 of the Constitution of 1818 provided ‘that the right of the trial by jury shall remain inviolate’; by section 6 of article 13 of the Constitution of 1848, it was provided ‘that the right of trial by jury shall remain inviolate’; and section 5 of article 2 of the Constitution of 1870 provides that ‘the right of trial by jury, as heretofore enjoyed, shall remain inviolate.’ The same right was guaranteed by each successive Constitution. The modifications in procedure made by statute did not affect the substantial right so guaranteed, and the words ‘heretofore enjoyed’ were not intended to engraft such changes upon it. The word ‘heretofore’ evidently relates to the past, and, to determine the true meaning of the words ‘the right of trial by jury as heretofore enjoyed,’ it is necessary to have recourse to the common law of England. George v. People, 167 Ill. 447, 47 N. E. 741;Sinopoli v. Chicago Railways Co., 316 Ill. 609, 147 N. E. 487;Liska v. Chicago Railways Co., 318 Ill. 570, 149 N. E. 469. The Supreme Court of Michigan spoke to the same effect in Hamilton v. People, 29 Mich. 173: ‘We must construe the jury system, like all other parts of our legal fabric, in the light of history and usage. It came into this country as a part of our common law, and it has been fixed by our constitutions as a known and regular common-law institution.’

Limiting our inquiry to the purposes of the present case, it may be stated that, under the English common law, the court instructed the jury upon the law, and the jury determined the issues of fact. This principle was succinctly expressed by Lord Coke: ‘Ad quaestionem facti non respondent judices, ad quaestionem juris non respondent juratores.’ Coke on Littleton, 155b. ‘It was very early provided,’ says Forsyth in his History of Trial by Jury, (Morgan's Ed. p. 216), ‘that the jury should not entangle themselves with questions of law, but confine themselves simply and exclusively to facts.’ Likewise, Professor Austin W. Scott, in 31 Harvard Law Review, p. 677, observed: ‘It may safely be said that at the time of the American Revolution the general principle was well established in the English law that juries must answer to questions of fact and judges to questions of law. This is the fundamental maxim acknowledged by the constitution.’

The courts of this country have recognized and applied this principle of the common law, and reference to a few of the leading cases may be useful. An indictment for a capital offense was returned in United States v. Battiste, 2 Sumn. 240, Fed. Cas. No. 14,545, and the question was directly presented whether, in criminal cases, juries were the judges of the law as well as of the facts. Judge Story, in rendering judgment, said, at pages 243, 244: ‘My opinion is, that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case, tried upon the general issue. In each of these cases, their verdict, when general, is necessarily compounded of law and of fact; and includes both. In each they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court. This is the right of every citizen; and it is his only protection. If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views, which different juries might take of it; but in case of error, there would be no remedy or redress by the injured party; for the court would not have any right to review the law as it had been settled by the jury. Indeed, it would be almost impracticable to ascertain, what the law, as settled by the jury, actually was. On the contrary, if the court should err, in laying down the law to the jury, there is an adequate remedy for the injured party, by a motion for a new trial. or a writ of error, as the nature of the jurisdiction of the particular court may require. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not by the law as a jury may understand it, or choose, from wantonness, or ignorance. or accidental mistake, to interpret it.’

The contention was made in United States v. Morris, 1 Curt. 23, Fed. Cas. No. 15,815, that juries, impaneled in the courts of the United States, were the rightful and final judges of the existence, construction, and effect of the laws that were material in criminal cases, and could of right, and in the performance of their duty necessarily should, decide finally upon the constitutional validity of the acts of Congress which the trials brought in question. In answering this contention, Mr. Justice Curtis said, at page 52: ‘The sixth article, after declaring that the constitution, laws, and treaties of the United States shall be the supreme law of the land, proceeds, ‘and the judges, in every state, shall be bound thereby.’ But was it not intended, that the constitution, laws, and treaties of the United States should be the supreme law in criminal as well as in civil cases? If a state law should make it penal for an officer of the United States to do what an act of congress commands him to do, was not the latter to be supreme over the former? And if so, and in such cases, juries finally and...