Arizona silver belt., 1884-01-12
The Judge aud Jury-A Divided Re-
 sponsibility.

Murphy trial, in vlew of Judge Shel- don's vigorous attack upon Graham County Jury for having exercised the right to weigh the evidence and apply it in a criminal case must have been less palatable to that distinguished iurist than dish of boneset tea:
 Gentlemen, you will be told that while you are judges of the facts. yet the court is the exclusive judge of the law. You will be told that you must take the statement of the law, not from the lawyer who speaks to you from the floor of the court room, but from the wiser and more impartial lawyer who will speak to you in conclusion from the judge chair. I do not deny this. The statute Of this territory gives the judge and not the jury the right to determine what the law is. But, the law being given by the judge, then the application of the law to the facts rest with the jury alone, and on such application I challenge openly, I chal- lenge utterly the right of any court to direct or influence the minds of the jurors. Understand me, gentlemen, I am not here to ask you to override the rulings of the court, or to turn a dis regardful ear to its instructions. But I am here to tell you that in passing upon the final question of the guilt or innocence of this defendant. your brains and your consciences arc under the guidance or control of no judge upon the face of the earth, except the judge who sits supreme in your own souls. If, without the instructions of the court, you are not satisfied to an absolute certainty of the guilt of the defendant, then such absolute certain ty ought not to be created in your minds by the courts statement of the law.
 A great lawyer-perhaps the great est of his day-Henry, Lord Erskine, once made an argument concerning the rights of juries. He said in sub stance and effect that if a jury in a civil case find verdict for the defend ant against the instructions of the judge, then the judge has the power to protect his prerogative by setting aside the verdict and granting the plaintiff new trial. But if the jury in criminal case find verdict for the defendant in the very teeth of the instructions of the judge, there is an end of the case; the judge can not set aside the verdict, he can not interfere with it, he must let the defendant go. The inference is irresistible that it is idle, 1t is illogical, it is but beating the air with mere words to say that the court has an absolute right where the law makers have given it no power to protect such right. That argument of Erskine's has been overruled by courts and denounced by district at- torneys for the best part of a century, but it has never 3een answered and it never can be answered, for it is as logically, mathematically true as it is true that twice five are ten.
 Gentlemen, this power of juries in criminal cases is one of the gravest features of our civilization. It is the boast and pride of the Anglo-Saxon race. It is a check on the tyranny of | rulers. It is curb on the power of courts. It is remedy for any in- justice which might in some cases be inadvertently perpetrated by 8 mis- direction or mistake of a judge. In the case in which Erskine invoked and elucidated this doctrine of the rights of juries, there was bitter and de- termined effort by the British govern ment to convict the defendant. The judges of the court of kings bench deemed it to be their duty in that case to join the prosecuting counsel, and help the government to a conviction and they excluded testimony which ought to have been admitted in the defendants favor, and admitted testi- mony against him which ought to have been excluded, and refused in- structions which would help him and gave instructions which would hurt him; and, after all, the verdict was Not guilty" And even as the waves of the ocean are beaten into froth when they hurl themselves against the stubborn rocks, so the mighty power of the British throne expended itself in impotent fury against the wills and consciences of the twelve sturdy freemen, who refused to allow court to make them instruments of injustice.
 It is not often that juries in our land do refuse to give due weight and proper allegiance to the words that come from the lips of a judge. If they find, as they generally do, that the judge knows the law, that he ad- ministers it fairly, that he is free from bias, that he does not try to help the prosecution to conviction, that he holds the scales of justice aloft with a steady and impartial hand, they will follow his directions with implicit con- fidence, and nothing that counsel for the defendant can say will much infu- ence them.
 But suppose there chance to sit up- on the bench one who, as against all persons accused of crime, is rigorous and bitter in judgment; ajudge whose mental training has been narrowed and fitted to the precise and orderly paths which exist in a country of farms and factories; a judge who in his strong purpose to protect society from evil-doers, does not always re- member that a judge should have no purpose save to hew to the line, let the chips fall where they may; judge who not only rules always little in | favor of the prosecution and d. little