
    No. 6894.
    The State vs. Joseph M. Johnson.
    The word " pants,” in an indictment for -larceny, sufficiently describes a thing which may be the subject of larceny.
    It is not a just ground of complaint that the court below, in charging the jury that they were judges of the law and the evidence, added the words that, “if they thought they knew more of the law than the judge, it was their privilege to so believe.”
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.
    
      H. N. Ogden, Attorney General, for the State.
    
      Robert Caldwell and Jno. Ii. Dinkgrave for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

The accused was indicted for the larceny of “ a pair of pants,” found guilty and sentenced to hard labor. He appealed and contends that — for two reasons — the judgment pronounced against him should be arrested or this case remanded:

1. Because the judge refused to charge the jury that the word “pants” is indefinite, has no meaning in law, and can not be the subject of larceny.

2. Because, to the charge asked of, and given by the court, “ that the jury are the judges of the law and the evidence, the court added: “ if you believe that you know more law than the judge does, you can believe so.”

1. Here and in common parlance, the word “pants ” has completely superseded the word “pantaloons,” and “the common acceptation of property is to govern its description, and the certainty must be to a common intent, by which is meant such certainty as will enable the jury to say whether the chattel proved to be stolen is the same as that upon which the indictment is founded, and will judicially show to the court that it could have been the subject matter of the offence charged.

Wharton, Criminal Law, e:l. of 1874, vol. 1, p. 357, No. 355.

Neither the prisoner, the jurors, nor the judge could have been misled by the use of the word “pants,” which sufficiently describes a thing which may be the subject of larceny.

2. The court did charge the jury that they were the judges of the law and the evidence, but defendant’s counsel contends that it destroyed the effect of that charge, by adding — in substance — that if they thought they knew more of the law than the judge, it was their privilege to so believe. That remark did not tend to restrict the privilege so broadly acknowledged, nor even to repress the physical power which the jurors had and have to disregard the instructions of one, who — after all — is their legal, safest and most reliable guide.

If the jurors are unqualifiedly the judges, the sole judges of the law, why is it made the duty of the court to charge them, and exclusively as to what law is or is not applicable to the cause submitted to them ?

The prisoner’s objections to the judge’s charges are not tenable.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed.

Concurring Opinion.

Manning, C. J.

It is not correct to tell a jury that they are the judges of the law, without explaining the modified sense in which alone they are so. It is not, and never has been, within the province of a jury to decide what the law of a case is. Except in periods when revolutionary passions dominated men’s judgments, a jury has never been supposed to have the legal right to disregard the law as pronounced by the court to them. It has become so customary of late years in this State for juries to be told, that they have that power, without adding that the exercise of this physical power is of itself a moral wrong; and the practice has become so general for the counsel of an accused person to persuade the jury that they have the right to usurp the function of the judge in this particular; and that too, not only without restraint by the judge, but often with his acquiescence; that from much repetition, it has almost come to be regarded as sound law.

I think it is time for this court to suppress this legal heresy, and to bring back the lower courts, and the profession, to the true, and now generally accepted rule, that the legal duty of a jury is to receive the law from the judge; and that a jury can not rightly exercise the physical power of disregarding the instructions of the court upon the law, any more than they can rightly ñnd a verdict directly opposed to the proof of the facts.

The j ury can not determine the law, or decide what is the law, or judge of the law, in any cause, except only in so far as the question of law is a component part, as it always is, of a general verdict. For example — the question of guilt in a criminal prosecution is compounded of two ingredients, 1. did the accused commit the act, and that is matter of fact, 2. is the act thus done a criminal offence, and that is matter of law. When the jury return a general verdict, they have necessarily passed upon the question of law, as well as upon the question of fact. But that is not what juries understand a judge to mean, when he tells them they are judges of the law as well as of the facts; nor is that what juries understand a judge to mean, when he tells them they have the poioer to decide-the law in a given ease; and therefore to tell them that, and nothing else, misleads them.

“My opinion, said Mr. Justice Story, 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, 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 hav.e 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.” Battiste’s case. 2 Sumn. 243.

So also Chief Justice Shaw; — -“it is the duty of the jury to receive the law from the court, and to conform their judgment and decision to such instructions, as far as they understand them, in applying the law to the facts to be found by them; and it is not within the legitimate province of the jury to revise, reconsider, or decide contrary to such opinion or direction of the court in matter of law. To this duty jurors are bound by a strong social and moral obligation, enforced by the sanction of an oath, to the same extent, and in the same manner, as they are-conscientiously bound to decide all questions of fact according to the evidence.” Commonwealth v. Porter, 10 Metc. 263.

“ My firm conviction, said Mr. Justice Curtis, is that under the constitution of the United States, juries in criminal cases have not the right to decide any question of law, and that if they render a general verdict, their duty and their oath require them to apply to the facts, as they may find them, the law given to them by the court.” U. S. v. Morris, 1 Curtis C. C. 23.

There has been manifested so much misconception of the law on this matter of late, that I have thought it appropriate to state my views-more at length than is done in the opinion of the court, in which and in the decree, I fully concur.  