
    The State v. Lorenzo Saliba.
    Tbe jury, in a criminal case, are tbe judges of both, tbe law and the facts; and, where the Ju refuses to so charge them, their verdict will be set aside, and the case remanded for a new trial.
    APPEAL from the First District Court of New Orleans,
    
      Hiestand, J. B. L. Lynch, Attorney-General, for the State. John Henderson, Jr., for defendant and appellant.
   Jones, J.

This is an appeal from sentence of death.

Among the assignment of errors filed in this Court we deem it necessary to examine only two of them, which are: 1. That the Court refused an instruction, asked on the part of the appellant, to be given the jury, and, in lieu thereof, gave its own instruction. We have already decided in the case of the State v. Mathew Jurche, that the jury in a criminal case are the judges of both the law and the facts. The lower Court, therefore, should have given the fifth instruction, and erred in refusing to do so. 2. On the point of continuance. As this cause will have to be remanded for further proceedings, for the reasons set forth on the point just considered, we do not think it necessary at this time to decide whether the Court did or did not err in refusing a continuance; but, in order that the appellant shall have the benefit on his new trial of the use of the depositions, and other proceedings accompanying the jury.’s inquest, we determine that the rule on the law officer for the production of the same, should have been made absolute.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be reversed, the verdict of the jury set aside, and th$ cause remanded for further proceedings, according to law.  