247. Evidence to the Jury; Instructions.

The jurors thus sworn hear the evidence which the trial judge permits to be offered. In determining what evidence is to be offered and considered the judge applies rules of law and the jury is authorized only to consider the evidence which is submitted to them. They have no right to take into account matters of fact not shown by the evidence, such as particular facts relating to the case which they know or believe as of their own knowledge. They are to try the case under the direction of the court as to what testimony or facts are properly admissible as affecting the verdict which they shall render.

Having heard the evidence submitted to them, the jurors are instructed by the judge as to the rules of law which they are to follow in reaching a conclusion from the evidence that is submitted, and they have no right to exercise their own judgment as to the rules and principles of law applicable to the case. The determination of the law is for the judge in the discharge of his legal duty. But the credibility of the witnesses and the weight of the evidence is for the determination of the jury in the exercise of their discretion, and the judge should not interfere with or control them in its exercise. In some states the statutes very specifically prohibit any comments by the judge as to the credibility of the witnesses or weight of the evidence; in other states and in the federal courts the judge may discuss the evidence for the enlightenment of the jury, though he cannot control the conclusions which they see fit to draw from the evidence properly presented to them (Vicksburg, etc. R. Co. v. Putnam).

248. Verdict of the Jury.

After being instructed by the judge as to the law applicable to the case the jurors consider by themselves, without the presence of the judge or any other person, the evidence submitted to them and the instructions given, and if they are able to do so they agree unanimously upon a verdict in favor of one party or the other. If they are unable to agree on a verdict then the

§ 248]

Verdict of the Jury.

337 case must be resubmitted in full before another jury, for according to the common law no verdict can be rendered one way or the other unless all the jurors concur therein. In some states there are constitutional provisions for a majority verdict or for a verdict of a specified number of jurors more than a majority but less than all, but any such provision constitutes a modification of the common-law jury trial.

The conclusion of the jury as to the facts reached under the direction of the court as to the law is a final and conclusive determination of the case which the judge must recognize and embody in the final judgment to be rendered by the court as the result of the trial. If it is manifest that the jury has not followed the direction of the judge in applying the law, the verdict may be set aside by the judge and a new trial granted. If the judge is satisfied that in some essential respect there is no competent evidence to support the verdict of the jury, he may set it aside as not supported by the evidence. If the judge is satisfied that the jurors have rendered their verdict as the result of passion or prejudice and not through a full and fair consideration of the evidence submitted, he may set it aside on that ground. If the jurors have been guilty of some misconduct such as conversing with persons outside of court with reference to the merits of the case while it is being tried, or have allowed other persons to be present during their deliberations, or have heard statements by fellow-jurors as to facts not shown by the evidence and calculated to influence them in reaching a conclusion, or have determined the result otherwise than by a consideration of the evidence, as by casting lots to determine what their verdict shall be, then the judge will set aside their verdict for such misconduct. The result of setting aside the verdict is in all cases that a new trial is ordered. No irregularity on the part of the jury in reaching a verdict will justify the judge in rendering a decision for one party or the other. The judge may also set aside a verdict and grant a new trial if he is convinced that he himself has committed an error in material rulings on the admission of evidence or in instructing the jury as to the law. In criminal prosecutions the rule

that the accused shall not be twice put in jeopardy for the same crime makes a verdict of "not guilty" conclusive regardless of any error of law or misconduct of the jury (see above, § 232), but if the verdict is against the accused then the same judicial discretion may be exercised by the judge as in a civil case in setting aside the verdict and granting a new trial.

249. The Jury in Inferior Courts.

Constitutional provisions as to jury trial are in general applicable only to courts of general jurisdiction. Inferior courts may be provided for in which questions of fact may be tried before a jury of less than twelve, or even without a jury, the right of jury trial being sufficiently preserved in such cases if an appeal from the judgment of such a court to a court of general jurisdiction is provided for in which a jury trial may be had (Capital Traction Co. v. Hof). In limiting the requirements as to jury trial to cases where the value in controversy shall exceed twenty dollars, the intention evidently was to allow Congress to provide if it saw fit for the trial of petty cases in the federal courts without a jury; but as a matter of fact no provision is made for such trials.

250. The Jury in Equity Cases.

It has already been stated that the article of the federal constitution on the judiciary recognizes a distinction between cases at law and cases in equity (see above, § 146) and Amendment VII guarantees jury trial only in cases at law. In equity cases, that is, cases which according to the practices of England at the time the colonists became independent were triable in courts of chancery, the judge determined both the law and the facts; and jury trial was not recognized except that in a case involving an issue of fact which might have been tried in a law court the judge could in his discretion refer the determination of such issue to a law court having a jury. In many of the states the same courts now try both law and equity cases, proceeding in the latter substantially in accordance with the chancery practice and determining both the law and the fact without

8251]

Re-examination of Cases.

339

the assistance of a jury, and this is the method adopted in the organization of the federal courts so that the question whether there shall be a jury trial in a case depends not upon the court in which the case is tried but upon the nature of the case.

If the case is one properly triable in equity and the procedure is in that form, it cannot be objected that the defendant is thereby deprived of trial by jury (Eilenbecker v. Plymouth County and In re Debs).

251. Re-examination of Cases Tried by Jury.

By the provision of the federal constitution, that "no fact tried by jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law" (Art. VII) it was simply intended to prohibit a review by a court sitting without a jury, of the conclusion of fact reached by a jury in the trial of such a case; that is, a trial judge cannot set aside the verdict of the jury and render a judgment on his own conclusions of fact, nor can an appellate court review the conclusions of fact reached by a jury and render a judgment on the evidence disregarding the verdict which the jury has reached on the facts. Although this specific provision is not usually found in state constitutions, the same rule is necessarily involved in the guaranty of jury trial. The appellate court in a case tried at law before a jury can review the rulings of the trial judge and can reverse the decision rendered on the verdict of the jury for errors of law committed, and on such review it may determine whether the judge has committed an error of law in refusing to set aside the verdict on the ground that such verdict is without support in the evidence, or is the result of passion or prejudice, or on similar grounds, but it cannot review the evidence for the purpose of determining whether the jury reached a correct conclusion. In equity cases, however, the appellate court may review the judgment of the trial court, both as to law and as to the facts, and it is usually provided that on appeal in an equity case the appellate court shall try the case anew on the evidence submitted to the trial court, and render such decision as should have been rendered under the evidence.

252. Waiver of Jury Trial.

The right to trial by jury in a court of law is one which may be waived by the person entitled thereto, and such courts are generally authorized to try cases without a jury where both parties consent thereto. In a case so tried, the conclusion of the judge as to the facts takes the place of the verdict of a jury. In criminal cases courts are not usually authorized to proceed without a jury, and it is often stated that jury trial cannot be waived in a criminal case; but there seems to be no reason why if the court is by law authorized to proceed in a criminal case by the consent of the defendant without a jury, such a trial would not be valid. (See above, § 243.)

253. Modification of Trial by Jury.

As the first eight amendments to the federal constitution apply to the federal government only, and are not limitations upon the powers of the states, there is no reason why the method of trial by jury recognized at common law may not be modified or superseded in any state by the amendment of the state constitution, even though such state constitution as originally adopted contained a guaranty of the right of jury trial. "Due process of law" which the states are by Amendment XIV prohibited from impairing does not necessarily involve jury trial, at least in civil cases (Maxwell v. Dow). But due process of law does necessarily involve trial in a duly constituted judicial tribunal, and whether such tribunal shall proceed in accordance with common-law methods of trial or shall be authorized to determine cases by some other recognized method, as the trial by a judge without a jury, is for the states to determine. Of course no modification of trial by jury could be made in the federal courts without an amendment to the federal constitution.

254. Expediency of Provisions as to Jury Trial. The historical fact that the colonists regarded jury trial as an essential of the common-law system of administering justice