The proposition laid down by the writer before referred to, that “in jury trials all questions of law are decided by the judge,” is not unqualifiedly true.  It is so in civil causes, but in criminal causes it has been holden by many of our best courts that the jury are judges of the law as well as of the facts.  Pages could be filled with authorities in support of this proposition.  The courts do hold, however, that the judges are to instruct the jury as to the law, and that it is their duty to take the law as thus laid down.  But it has never been held that if the jury assume the responsibility of holding a prisoner not guilty in the face of a charge from the judge that required a verdict of guilty, where the question was wholly one of law, they had not full power to do it.

The question is one ordinarily of little practical importance, but it here helps to make clear the very point we are discussing.  Here the judge laid down the law, correctly, we will suppose, certainly in terms that left the jury no doubt as to what he meant; and here, by all the authorities, the jury ought, as a matter of proper deference in one view, or of absolute duty in the other, to have adopted the view of the law given them by the judge.  But it was in either case the jury only who could apply the law to the case.  The judge could instruct, but the jury only could apply the instruction.  That is, the instruction of the judge, no matter how authoritative we may regard it, could find its way to the defendant only through the verdict of the jury.

It is only where the confession of facts is matter of record, (that is, where the plea filed or recorded in the case admits them), that the judge can enter up a judgment without the finding of a jury.  Thus, if the defendant pleads “guilty,” there is no need of a jury finding him so.  If, however, he pleads “not guilty,” then, no matter how overwhelming is the testimony against him on the trial, no matter if a hundred witnesses prove his admission of all the facts, the whole is not legally decisive like a plea of guilty; but the question still remains a question of fact, and the jury alone can determine what the verdict shall be.  In other words, it is no less a question of fact for the reason that the evidence is all one way and overwhelming, or that the defendant has in his testimony admitted all the facts against himself.

The writer has intended this article for general rather than professional readers, and has therefore not encumbered it with authorities; but he has stated only rules and principles that are well established and familiar to all persons practising in our courts of law.