
    The State vs. Dennis Drawdy and Joseph C. Padgett.
    
      Criminal Law — Evidence—Jury.
    Where three are jointly indicted for a capital offence, and two only are tried, the third not having been arrested, the wife of the one not upon trial is a competent witness for the ^tate.
    In capital cases the jury are not judges of the law as well as of the facts. It is their duty to receive the law as it is laid down to them by the Court.
    BEFORE GLOVER, J., AT COLLETON, FALL TERM, 1866.
    Except the evidence, which it is deemed unnecessary to publish, the report of his Honor, the presiding Judge, is as folloivs:
    “The defendants, with William W. Pender, who has not been arrested, were indicted for burglary, and were convicted. There were four counts: 1st charged burglary at common law; 2d, burglary under the Act of 1865; 8d, larceny; and 4th, the receiving of stolen goods.”
    [Here follows the evidence, after which the report proceeds as follows:] •
    
    “Notice of a motion for a new trial was given, on the following grounds:
    “1. Because the Court erred in charging the jury, that they were not judges of the law as well as of the facts, in the trial of capital felonies; that the jury could not decide on the law in such cases; that the Court was alone responsible for that.
    “2. Because the Court charged the jury, that if they believed the evidence adduced on the part of the State, they were bound to convict the prisoners.
    
      
      “3. Because the Court charged the jury, that an alibi must be very clearly made out before a jury should be called on to believe it; whereas it is submitted that an alibi is subject to the same rules of evidence as any other fact, and that the alibi proved in this case is as clearly made out as the burglary, and that the jury erred in finding the contrary.
    "4. It is submitted that the Court erred in allowing Mrs. Pender, the wife of a party charged in the same indictment with defendants, to testify against defendants, after the complicity of her husband with defendants was fully established.
    
      “5. Because the charge of his Honor, the presiding Judge, and the finding of the jury were, in other respects, contrary to the law and evidence.
    "The evidence is reported at the request of one of the counsel, and the jury were instructed that their duty was to examine the evidence and to ascertain what facts were proved; that the duty devolving on the Court was to give them in charge such principles of law as are applicable to the case, and that it was important to maintain this distinction in the discharge of our several duties. And, as the counsel had confidently insisted, in argument, as he now does in the first ground of appeal, that the jury were the judges of the law, I, with equal confidence, not only instructed them otherwise, but endeavored to show how dangerous it would be in the administration of justice, if they should assume the responsibilities that attach to the Court: that an error in law committed by the Court could be corrected on appeal; but that if they assumed to be judges of the law, and thereby the guilty should escape, there would be no remedy.
    “ Preferring to the evidence, I expressly informed them that it was neither my duty nor my wish to control tHeir decision, but rather to direct their inquiries, and to enable them to come to a correct conclusion; and that if they believed the witnesses introduced by the State, the prisoners were guilty of the crime charged, at the same time inviting their attention to the evidence introduced for the defence, and submitting the control of the facts to them.
    “I admonished the jury, that alibi evidence should be heard and examined with caution; but that, if true, it was, in the nature of things, the most conclusive of innocence.
    “Mrs. Pender was admitted to testify, not only because I considered her competent under the late Act of Assembly, but because, independent of that Act, her husband not being on his trial, she was a competent witness. {State vs. Anthony, 1 McO. 285.)
    “ As no errors are specified, I cannot know in what respects the charge is otherwise contrary to law, ás is insisted in the 5th ground.”
    
      Henderson, Behre, for appellants,
    cited 1 Hale P. 0. 619; Dagge Or. L., Book 1, chap. 2, part 2 ; Barrington on Stat. 18, 26, 311; The People 'vs. White, 24 Wend. 520; Graham & Waterman on New Trials, 3 vol., 738 ; 1 Str. B. 504; Gone vs. Green, 17 Mass. Bep. 515; 4 Bich. 260; 5 Strob. 91, State vs. Hammond; Green on Ev., vol. 1, p. 443; State vs. Me Grew, 13 Bich. 316.
    
      Youmans, solicitor, contra.
   The opinion of the Court was delivered by

Dunkin, C. J.

The principal if not exclusive grounds urged in the argument for a new trial, were for misdirection of the presiding Judge in his charge to the j ury, as well as for the admission of incompetent testimony.

Upon this latter ground it is only necessary to repeat that William W. Pender, the husband of the witness, had not been arrested and was not upon his trial. The verdict could not be given in evidence either for or against him. Upon the authority of the case cited, (State vs. Anthony, 1 McC. 285,) under these circumstances the objection to the competency of the wife was properly overruled.

But the misdirection upon which the counsel chiefly relied was the instruction that the jury were not judges of the law as well as tbe facts in the trial of capital felonies. Upon this subject it cannot be said that there is either doubt or difficulty. The jury have the power (and, in finding a general verdict, must necessarily exercise it) to judge of the facts and the law. But it is the duty of the Court to instruct the jury upon all questions of law, and it is the duty of the jury to take the law from the Court, as they take the facts from the witnesses, and make their verdict accordingly. This is a principle of the utmost consequence to life and liberty as well as property. It extends to all criminal -cases. What is. an assault, is a question of law; what is murder, is a question of law. Whether in a given case the facts amount to murder or assault is a matter for -the jury under the direction of the Court on the law. The jury take the instruction of the Court as evidence of the law, and they turn to the witnesses for evidence of the facts; and judging in this sense of the law and facts, a 'general verdict is rendered. In any other sense the law of one jury might not be the law of another jury; and if they erred through ignorance or otherwise, there could be no correction. If the Judge err in misstating a legal principle, the remedy by appeal is easy, and the error, may be corrected; but if the jury act on a misconception of law, there is no remedy. This is the greatest protection to the accused; his highest and best security against oppression. These principles are well stated in the case of The State vs. Randell & Vincent, cited at the bar, from 5 Harrington’s (Delaware) Rep. 483. The charge of the presiding Judge in this case, as reported to us, does no more than enumerate these well-settled principles. Nor was there any error in his observations in reference to the evidence of an alibi.

The testimony was peculiarly proper for the consideration of the jury.

Under the provisions of the recent Act of the Legislature, tbe defendants were admitted as witnesses, and had the opportunity of telling their own story. It was the province of the jury to estimate what degree of credit should be attached to this as well as the other evidence in the cause. They have found the defendants guilty, and we see no grolind, either in the charge of the Court or in the conclusions of the jury, to warrant this Court in ordering a new trial.

The motion is dismissed.

Wardlaw and Inglis, J. J., concurred.

Motion dismissed.  