one juror, some time after the trial commenced, being necessarily
withdrawn, a stipulation was entered into, signed by the
District-Attorney, and by the defendant and his counsel, to the effect
that the trial should proceed before the remaining eleven jurors, and
that their verdict should have the same effect as the verdict of a full
panel would have. A verdict of guilty having been rendered by the eleven
jurors, was set aside and a new trial ordered by the Court of Appeals,
on the ground that the defendant could not, even by his own consent, be
lawfully tried, by a less number of jurors than twelve. It would seem to
follow that he could not waive the entire panel, and effectually consent
to be tried by the Court alone, and still less could the Court, against
his protest, assume the duties of the jury, and effectually pronounce
the verdict of guilty or not guilty in their stead.

It will doubtless be insisted that there was no disputed question of
fact upon which the jury were required to pass. In regard to that, I
insist that however clear and conclusive the proof of the facts might
appear to be, the response to the question, guilty or not guilty, must
under the Constitution come from the jury and could not be supplied by
the judgment of the Court, unless, indeed, the jury should see fit to
render a special verdict, which they always may, but can never be
required, to do.

It was the province of the Court to instruct the jury as to the law, and
to point out to them how clearly the law, on its view of the
established facts, made out the offence; but it has no authority to
instruct them positively on any question of fact, or to order them to
find any particular verdict. That must be their spontaneous work.

But there was a question of fact, which constituted the very essence of