Habersham v. State, 56 Ga. 61 (Ga.)

Bleckley, Judge.

1. Logically considered, the trial of a criminal case is an effort to complete a final syllogism, having, for one premise, matter of law; for the other, matter of fact; and for the conclusion, the resulting proposition of guilty or not guilty. It is the duty of the judge to supply the jury with material for the major premise of this syllogism; and it is the duty of the jury to collect from the evidence the minor premise, compare the two, draw the conclusion, and declare it in their verdict.

Inasmuch as it is possible for the judge to mistake the law or misrepresent it, the material which he supplies, or some part of it, may be erroneous. Are the jury, nevertheless, to accept it as correct, or is it subject to their revision and correction ? May they, if they think it faulty, reject it, and substitute in its place something corresponding to their own convictions of what the law really is ? Are the scriptures of the law an open bible; or must they'be read for the laity by the priesthood of the bench ? The power of overruling the judge’s charge, apparently conceded to the jury by this court in most of the cases (see Hopkins’ Annotated Penal Laws, section 1602,) prior to Brown’s case, reported in 40 Georgia Reports, 689, is, in the latter, denied ; and, by several later adjudications, the doctrine of Brown’s case has become the established rule of decision: See 41 Georgia Reports, 217; 49 Ibid., 485; 52 Ibid., 82, 290, 607. It is, perhaps, too late for a single member of the court to urge his individual conviction that Brown’s case was an innovation. The learned judge who delivered the opinion of the court in that and in some of the subsequent cases cited above, has declared that it was not an innovation, that it was opposed to previous dieta only, not to previous decisions. He thought the true principle of the former cases was preserved. Acquiescence in that view would, probably, at this late day, be the better line of judicial conduct for any of his successors who might be of a different opinion. The now current holding is, in effect, that, to the jury, the highest and best evidence of what the law is, is the charge of the court; indeed, that their only final access to the law is through this charge. And it is maintained that, in order to judge of the law, it is in nowise necessary that the jury should be invested with power to revise the charge and correct it. As the judge is the organ of the law itself? through whom is made known to the jury what the law is, they are to receive it as he lays it down, and not discredit him as a legal authority. In judging the law they are to pass upon what it is in the charge, not upon what it is out of the charge; and coming thus to an understanding of it, are to

determine what is its right and proper application to the facts in evidence, and what conclusion results from combining the two elements of law and fact. When the jury hear the charge, understand what it means, and apply it to the facts before them, they have judged of the law which the charge contains; and, as they have no proper access to any different law, there is, for them, no different law on the subject, and they cannot correct the errors of the judge if they would. Relatively to the jury, the charge stands like a volume of law published by authority — the only volume so published of which they know the contents. But none of the cases hold, or even hint, that the jury are in no sense judges of the law. If to judge the law and to follow the charge be incompatible, that is, if to accept the law as registered in the charge be a surrender of the right to judge of it, then the theory that the charge is binding must be abandoned, for the statute expressly declares that the jury shall be judges of-the law as well as the fact: Code, section 4646. If we must give up one or the other of the two things, it is in vain to hesitate; the right to judge must be preserved, and the duty of conforming to the charge be no longer exacted. We have seen, however, that the two branches of the rule are believed to be reconcilable, that-is, that the jury may be judges of the law without having the right to contradict the court or to reject what is delivered as law from the bench. No tribunal whatever is at liberty to refuse to recognize as law what comes to it duly vouched as such by the highest instrumentality appointed by the law to give it assurancce. If otherwise, a court, in judging of the law contained in the constitution of the United States, might deny the contents to be law, instead of merely finding out the true meaning of the instrument and applying that meaning to the case in hand.

2. In the foregoing presentation of the relative functions of judge and jury, the subject has been contemplated in its widest range, as embracing an entire case; but the like principle of separation between the province of the judge and that of the jury is to be observed in dealing with any given sub

division of the case. Tims, an essential part of the offense before us is the custody alleged to have been violated. Was it a legal or an illegal custody? How are the two classes to be distinguished? By certain variations in the attendant circumstances. What circumstances will bring this particular custody within the class legal, and what will bring it within the class illegal, are questions of law; but the actual presence or absence of one set of circumstances or the other, in the particular instance, is matter of fact. Legal custody or illegal custody is, therefore, a conclusion consisting of Jaw and lact blended; just as guilty or not guilty is a conclusion composed of the like elements. As both conclusions are of the same nature, the processes of arriving at them are similar. The law element is the material for the major premise in a special syllogism touching custody, and is to be supplied by the judge. The jury are to collect from the evidence the minor premise, compare the two, and draw the conclusion of legal custody or illegal custody. As the judge can decide no question of fact, he is not permitted to declare whether the particular custody disclosed by the evidence belongs to the one class or to the other. He, as the organ of law, can carry his voice no farther than the law goes. Pie can say, as the law does, that such and such custody is legal, and such and such illegal; but he cannot say that this particular custody was such or such, for that depends, not on the law, but on the evidence. Of course, too, the bare fact of whether there was any custody at all, is, also, for the jury, unless it is admitted.

3-8. The remaining points are distinctly ruled in the head-notes, and will be fully understood when read in the light of the reporter’s statement.

Judgment reversed.