¶1Indictment for larceny. Plea not guilty. Verdict and judgment for the state.
¶2After the evidence on both sides was closed, the defendant below asked the Court to instruct the jury that they were the *151judges of the law as well as of the facts in the cause, which instruction the Court refused to give.
¶3We thinlc that the Court ought to have given the instruction required; and that their refusal to do so renders the judgment erroneous
¶4The judgment is reversed and the verdict set aside. Cause remanded, &c.
¶5 Contra. Townsend v. The State, Vol. 2 of these Rep. 151.
¶6The Circuit Court of the United States, third circuit, in. their charge to the jury on the trial of an indictment for robbing the mail, use the following language on this subject:
¶7“In repeating to you what was said on a former occasion to another jury,— that you have the power to decide on the law as well as the facts of this case, and are not bound to find according to our opinion of the law,—we feel ourselves constrained to make some explanations not then deemed necessary, but' now called for from the course of the defence.
¶8“You may find a general verdict of guilty or not guilty as you think proper, or may find the facts specially and leave the guilt or innocence of the prisoner t® the judgment of the Court. If your verdict acquits the prisoner, we cannot grant a new trial, however much we may differ with you as to the law which governs the case; and in this respect a jury are the judges of law, if they choose tobecome so. Their judgment is-final, hot because they settle the law,but because they either think it not applicable, or do not choose to apply it to the case.
¶9“But if a jury find a prisoner guilty against the opinion of the Court on the law of the case, a new trial will be granted. No Court will pronounce a judgment on a prisoner against what they believe to be the law. On an acquittal there is no judgment; the Court do not act, and cannot judg-e, there remaining nothing to act upon.
¶10“ This, then, you will understand to be what is meant by your power to decide on the law; but you will still bear in mind, that it is a very old, sound, and valuable maxim in law, that the Court answers to questions of law and the jury to facts. Every day’s experience evinces the wisdom of this rule.” United States v. Wilson et al. 1 Baldw. 108.
¶11Vide, also, The People v. Bradford, 1 Wheeler’s Cr. Cas. 219; and The People v. Moore, 3 id. 82; in which the same opinion is expressed as that contained in the text.