League v. State

Bartol, C. J., delivered the opinion of the Court. This record shows that the plaintiff in error being indicted for murder, was tried by a jury, who, failing to agree upon a verdict, were discharged; he was then admitted to bail, and the case continued to December Term, 1871. At that Term he elected to be tried before the Court, under the 91st section, Art. 30, of the Code; and the case was accordingly tried before the Court on the 15th day of January, 1872. The Court, consisting of two Judges, were unable to agree, and ordered a re-trial.

On the' 31st day of January, 1872, the plaintiff in error, by his attorneys, moved the Court that he. be discharged, insisting that the failure of the Court to agree, was equivalent to a judgment of acquittal. This motion being overruled, he prayed for a writ of error. Afterwards, on the 3d day of February, 1872, he was tried before a jury, plead “not guilty,” and the jury rendered a verdict of “ not guilty of murder, but guilty of manslaughter,” and recommended the prisoner to the mercy of the Court. On the same day a motion was made on behalf of the prisoner for a ■“ new trial,” which was granted by the Court, and the cause continued.

There being no final judgment in the case, the writ of error was prematurely brought, and must be dismissed. But as the counsel on both sides have intimated a wish that the opinion of this Court should be expressed upon the main question in the case, which has been fully argued; and as the decision of the same will obviate the necessity of suing out another writ of error, or taking an appeal, in case the final judgment should be against the defendant below, we consider it proper briefly to express some of the reasons why, in our judgment, the Court below was right in refusing to discharge the defendant. By the Constitution, Art. 15, sec. 5, it is declared that “ in the trial of all criminal eases, the jury shall be the judges of law as well as of fact.” The Code, Art. 30, sec. 91, provides ²⁶⁵ that “any person presented or indicted, may, instead of traversing the same before a jury, traverse the same before the Court, tvbo shall try the law and the facts.” The effect of this is to allow a party the privilege of electing to be tried by the Court instead of a jury, and when such election is made, the Court is substituted for the jury, and has the same duties and functions to perform in passing upon the guilt or innocence of the accused. Unless the party charged is determined to be guilty, or not guilty,