
    Daily v. The State.
    fa an indictment for stealing gold coin, to say United States gold coin, is the same as to say current gold coin of the United States, &c.; and whore the several denominations and the value of such coin are alleged in dollars "and cents, it may be presumed that the Court and jury will know that a coin of the value of ten dollars is an eagle, &c.
    By the constitution, the jury are the exclusive judges of the law and the facts, in criminal cases, where they acquit; but they cannot pass upon the validity of the indictment. They judge the case from the evidence, in connection with such knowledge of the law as they may individually possess or acquire from the argument of counsel, and the instructions of the Court. If they acquit, the defendant is discharged. If they convict, then the Court rejudges the questions of law and of fact.
    If the Circuit Court should sustain a conviction upon a bad indictment, the Supreme Court would set the defendant at liberty.
    APPEAL from the Hendricks Circuit Court.
    
      Thursday, June 24.
    
   Perkins, J.

The grand jury returned into the Hendricks Circuit.Court an indictment in these words:

“ The grand jury of the state of Indiana, impanneled, charged and sworn to inquire in and for the body of Hendricks county, upon their oath present, that William C. Daily, on the tenth day of January, eighteen hundred and fifty-seven, at and in the county of Hendricks and state of Indiana, did then and there feloniously steal, take and cany away, two United States gold coins of the denomination and value of ten dollars, ten United States gold coins of the denomination and value of five dollars, and ten United States gold coins of the denomination and value of two dollars and fifty cents each, — altogether of the aggregate value of eighty-five dollars, — the personal goods and property of jHenry Carter; contrary to the statute in such case made and provided, and against the peace and dignity of the state. P. S. Kennedy, Prosecuting Attorney.”

A motion was made to quash the indictment because, in describing the coin, it did not, in the usual phraseology, appropriate to the purpose, state it as so many pieces of the current gold coin of the United States of America, called eagles, half-eagles and quarter-eagles,” &e.

The motion was overruled, and we think correctly. To say United States gold coin, is substantially the same as to say gold coin of the United States; all such coin is current by law. And the Court and jury know that a United States gold coin of the denomination and value of 10 dollars is an eagle, &c. We regard the word “each” as referring to the several classes of pieces as though it were repeated after the naming of them severally. But if we are wrong in this, still the clause in the indictment in which the word is used contains a charge of grand larceny in itself, and hence the whole indictment could not have been quashed for the uncertainty in other charges contained therein.

On the trial, the Court instructed the jury “.that they had nothing to do with the question as to the sufficiency of the indictment; that the Court had determined that.” To this instruction exception was taken. It is contended that it infringed the right of the jury to determine the law and the facts.

The right of the jury, in criminal cases, to determine the law and the facts, was the subject of long and earnest controversy in the English Courts. Under the Tudors and Stuarts the British government had become despotic, and oppressively restrictive of the rights of the citizen; and it desired to use the Courts in enforcing and perpetuating tyranny. It wished to punish citizens, as for the crimes of heresy, libel, treason, &c., in cases where the least freedom was exercised in the worship of God, or in speaking and writing upon the abuses of the government and the right of opposition thereto. Too many of the judges were eager, or willing, at least, to make the Courts instruments for carrying into execution the despotic will of the monarch. This they could not well accomplish without restricting the power of juries, as the members of those bodies naturally sympathized with their peers, the oppressed class from .among whom they were selected. Hence, the necessity of limiting the province of the jury to a simple finding of facts, leaving the law to be pronounced by the judges. This enabled the Court, in every instance where any facts were found, to declare that upon the facts, the law adjudged the defendant guilty, or led it to compel the jury to so find in their verdict. In theory, the general doctrine above asserted, is correct; and where judges are honest and impartial, tends to the better administration of justice. The judges ought to be able to respond with more accuracy to the law than juries. But such was not the state of things formerly, in England. The judges were not always honest and impartial. They leaned to the side of tyranny, while juries leaned to the side of freedom. Hence, the advocates of popular rights insisted upon the right of the jury to determine, both what facts were proved in the case, and whether, in point of law, they constituted a crime; in other words, to determine the facts proved, and the law arising upon the facts, and thus be enabled to acquit the accused independently of the judges. Particularly was this so in eases of libels. 2 Blackf. 151.

This right — whether wisely or not, in the changed condition of things, it is not for us to say — has been secured to juries in this state by the constitution. Juries here, in criminal cases, have a right to determine the facts proved, and the law arising upon those facts, independently of instructions from the Court, in cases where they acquit, but not where they convict. We regard the new constitution as having to some extent enlarged the rights of the jury in this particular, (Williams v. The State, at this term,) though, without the point being considered, this Court inadvertently intimated differently in the case of Driskill v. The State, 7 Ind. R. 339, a case rightly decided, however, upon its own facts. That such is the effect of the new constitution, is clear from the reasoning of Judge Holman in 2 Blackf. 152. But the enlarged right of the jury does not extend to the indictment. They judge the whole case upon the evidence which goes to them from the witnesses, &c., in connection with such knowledge of the law as they may individually possess, and acquire from the arguments of counsel and the instructions of the Court. If they acquit, the defendant is discharged; but if they convict, then, in favor of liberty and life, the Court rejudges the questions of law and fact. If the inferior Court should sustain a conviction upon a bad indictment, the Supreme Court would set the defendant at liberty.

C. C. Nave and J. Wither cm, for the appellant.

As to the evidence in this case, we cannot say it did not justify the finding of the jury.

Per Curiam. — The judgment is affirmed with costs.

Judge Hanna concurs in the conclusion, but dissents from the reasoning, in this case. 
      
      
        Ante, 503.
     