substance of the representations made as to these existing facts was that an assessment had then been made. It is not alleged that no assessment in form had been made. The purport of the allegations is that one .had been made, and made regularly. Corporation stock is taken to be assessed for the subscription. A corporation with stock at the par value of $100, on which only 50 cents per share should be paid, would be exceedingly hollow. The funds arising from the assessment would be corporate property. If the defendant and others would not pay their subscriptions or assessments, nor have them enforced while they enforced those against others, equity would afford the others relief. Dodge v. Woolsey, 18 How. 33. The orator is to be supposed to know his rights. The defendant does not appear to have misrepresented or concealed any material fact relative to the corporate property or franchises. What was represented and withheld related to the policy of the management. The orator seems to have preferred to sell rather than risk the management promised; and he sold out. The course of the defendant may not have lain in the direction of the highest morality, and the whole scheme in which the orator and all wele.engaged may not; but this court is dealing with such rights as the law takes notice of, and not with purely moral questions. There is not enough shown, as the bill is framed, to entitle the orator to rescind the contract and be restored to his stock. The demurrer is sustained.
UNITED STATES 11. TAYLOB.
Circuit Court, D. Kansas.
CRIMINAL LAW-DIRECTING VERDICT.
In a criminal case the court cannot direct a verdict of guilty even where the facts are admitted beyond dispute, and the question of guilt or innocence depends Wholly upon a question of law which the court must determine.
TRIAL BY JURy-CONSTITUTIONAL RIGHT.
The right to a speedy and public trial by an impartial jury Is guarantied to everyone accused of crime by amendment to article 60f the constitution of the United States. It is II. right which cannot be waived, and a trial by the court. without a jury, even with the consent of the accused, is erroneous. ll. S.UIE. . While the court Is the judge of the law and may instruct the jury upon the law, and. while it is the duty of the jury to receive the law from the court, it is still within the power of tIle jury to render a general verdict, and thereby t() decide on the law as well as the facts.
UNI'l'ED STATES V. TAYLOR.
An information was filed in the district court for the district of Kansas, charging the defendant with the offence of carrying on the paid special business of a retail dealer in liquors without taxes by law. A trial was had, in the course of which the court directed the jury to return a verdict of guilty. Exceptions were taken by defendant, . who thereupon moved for a new trial, which motion was overruled. The direction to the jury and overruling the motion are assigned as error. J. R. Hallowell, U. S. Dist. Atty., for the United States. J. H. Gilpatrick, for defendant. MCCRARY, C. J. The single question to be determined is whether, in such a case as this, a court may direct a verdict of guilty. It is insisted on the part of the government that, the facts being admitted or settled beyond dispute, the question of guilt or innocence depends wholly upon a question of law, which the court must determine, and that, therefore, the court may direct a verdict either way, in accordance with its opinion of the law. This is the view which was taken by the court below. In so holding, the learned district judge was, no doubt, largely influenced by the ruling of Mr. Justice Hunt in the case of U. S. v. Anthony, 11 Blatchf. 200. I find, however, upon an examination of the subject, that, with this single exception, the authorities are, with entire unanimity, against the right of a court in a criminal case to direct a verdictof guilty. The constitution guaranties to every accused person "the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed." Sixth amendment. This is a right which cannot be waived, and it has been frequently held that the trial of a criminal case before the court by the prisoner's consent is erroneous. State v. Mann, 27 Conn. 281. It is very difficult to see upon what principle it can be maintained that an accused person has had a trial by an impartial jury, within the meauing of the constitution, in a case where the court has directed the jury, witbout deliberation, to find him guilty. It would soom that such a trial is, in substance and effect, a trial by the court quite as much as in a case where a jury is waived by consent of the accused. The constitution does not deal with the form, but with the sub· stance, the essence, of the trial, and therefore requires a submission of the case to the jury for their consideration and decision upon it. There can, within the meaning of the constitution, be no trial of a cause by a jury unless the jury delibera,tes upon and determines it.