Year: 1876

US have been settled by the SUPREME
Court of the United States 10
Hickman VS.. James. 20 Wallace, l9I.l
This was case of malicious prosecution
in which the court premptorily instruct
ed the jury to acqult
the two defendants, The Supreme
Court of the United States says, there
was some evidence against both OF them
whether it was sufficient to warrant
verdict of guilty was aquestion for the
jury under the instructions of the court
The learned Judge mingled the duty o.
the court and jury leaving to the jury
no discretion but 10 obey the direction
of the court, where there is no evidence
nor such q defect in it that the law viii
not permit verdict tol
the plaintiff to be given, such an instruc
tion may be properly demanded, and ii
is the duty OF the Court to give ito re-
fuse is error. In this case the evidence
was received without objection, and wa:
before the jury. 1t tended to maintain
on the part Of the plaintiff the issue
which they were to try. Whether weak
or strong it was their right to pass on it
1t was not proper for the Court to arrest
this part OF the case more than any
other from the exercise of their judg-
ment. The instructions given overlooked
the line which separates their spheres OF
duty. Though co.relative they are
distinct, and it was important to the right
administration of justice that they
should be kept so. 1t is as much in the prov
ince of the jury to decide questions OF
fact, as of the court TO decide questions OF
law. The jury should take the law as
laid down by the court, and give it full
effect. But it is applicable to facts
as the facts themselves, and it is proper
for them to determine that these are the
checks and balances which give TO the
trial BY Jury its value and experience
AS i. appsa-s fr m their importance they
are indispensable to the harmony and
efficiency Of the system. The Supreme
Court, where the facts are not contro.
verted, and where the inference to be
drawn from them is certain,
necessary and undisputed, or where there
Is no evidence tending to establish a
necessary element in the case has been
that the trial court may peremptorlly d.
rect what verdict shall be given. The
distinction between those which fall
within the rule first stated and those
which are for the decision of the jury,
is well illustrated in a railroad company
vs.. Stout. Q7 Wallace, S57.) In this
case the Supreme Court heId that where
in any case it is a matter ofjuGgment and
discretion of sound inference what is the
deduction to be drawn from even undis-
puted facts, where different men equally
sensible and equally impartial would
make different differences, such cases
the law commits to the decision of the
iury under instructions from the court.
The motion here, must, in our judgement
be denied for two reasons:


First-There are facts which arc not
undisputed. For example, those relat
ing to the letter testified TO by Everest
and McGill.


Second-The proper differences to be
drawn from the kilograms and other
facts not so clear and certain that
the court can declare their effect as a
matter of law,


The doctrine contended for by the
learned counsel for the defendant, if ap.
piled to this case, would require this
Court to disregard the well settled rules
laid down by the United States Supreme
Court in the case of Hickman W.. Jones,
above cited, in which that tribunal held
that the constitutional province OF the
iurv under the circumstances from the
Court extends to the right to decide on
the questions of fact in weak case as
well as in strong case; analyze the cvi'
dence before them, and determine the
weight to be given to it and the several
parts thereof"


Some discussion then took place as Ia
the order In which the arguments should
be made. The rule OF the court had been
for the defense to open and be followed
bv The prosecution, but both judges
Porter and:,Storrs thought the closing
should be by the prosecution. The case
rested on circumstantial evidence and it
was but Just that the defense be advised
as to what portion of the great mass OF
testimony which had been adduced, and a
large part of which had been rendered
irrelevant since its Introduction, would
be relied on by the prosecution. As the
prosecution had the terrible advantage
OF closing the argument, they
should net complain of being
required to disclose their case, so as tc
give the defense an idea rs TO what they
would have to answer.


Judge Dillon did not think the rule q
good one. and in view OF the circum.
stances 1t seemed both to himself and
Judge Treat but just that the proseca'
tion be required TO open, in order that
the defense might not waste time IN
guessing on what portion of the mass OF
testimony the prosecution relied. lie
would therefore suspend the rule as i
matter of Justice to the defendant.


Col. Over said be had not eYpoc. ed
this and had not prepared his argument
He therefore asked for an ad Journmeni
till tomorrow.


Judge Porter joined in the request, q:
the defense was equally unprepsred.


Judge Dillon acquiesced, and the Court
adjourned.


The Case To be Given TO the Jury OF
Monday.


1t has been decided by the counsel il
the Babcock case that Col. Brodhesd
shall open the argument tomorrow
morning, and that Stcrrs shal. follow
him. Judge Porter will close for the
defense. and District Attorney Dyer fol
the prosecution. The argument VII
probably be continued till Monday even
ing, when the case wi, be given 70 IN,
jury.


General Schenck Not Resigned.
JoSnoS Fehrusrv 1S-The Announce