The opinion
CATES, Judge.
I concur in the judgment and in all of what Judge PRICE has so well and thoroughly treated.
A note of caution seems needed lest this case rise in a different form to haunt us.
How Clark died was a question of fact and the judgment in the murder trial did not make it one of law. 1 The death certificate, when saying death was due to “homicide,” showed only an opinion probably extending beyond the bounds of expert testimony. Cf. Hawkins v. State, 267 Ala. 518 , 103 So.2d 158 (lunacy commission report not conclusive).
Two juries viewing the same transaction can come to opposite results. Charles P. Curtis, The Trial Judge and the Jury, 5 Vand.L.R. 150, says:
“ * * * Juries relieve the judge of the embarrassment of making the necessary exceptions. They do this, it is true, by violating their oaths, but this, I think, is better than tempting the judge to violate his oath of office. Thus the law may ignore necessary exceptions to its necessarily strict rules, much as a miracle allows the order of nature to proceed on its orderly way, indifferent and unaffected, intent on the next event.
“ * * * Practically, and ignoring pretensions to logic, there are exceptions, and the law looks to the jury to make them, because it does not feel able to make intelligible rules to cover them; nor does it want to admit that the law is less than a complete system.
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“ * * * When the general terms of the law are too far removed for the l'awyer-like mind to mediate between them and the immediate occasion, the law, like Pilate, and equally wisely, washes its hands and asks the jury to see to it.
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“Finally, the law refuses to let the jury give any reason for its decision. Lord Goddard, the Lord Chief Justice who presided in Harold Laski’s libel suit against the newspapers in 1945, put it this way when he charged the jury. ‘Another incalculable advantage of trial by jury is this: whereas, if a judge tries a case, he has to give the full reasons on which he bases his judgment, a jury are in a more fortunate position, that they cannot be cross examined or asked to give their reasons ; they simply return their verdict one way or another, say what they find and they do not give their reasons.’ ”
While we formally do lip service to the notion that the law exists for every set of *549 facts, yet we are aware that juries, in applying general rules (and their exceptions) in detail, often act as a twelve-man lawmaking body. Thus, Mr. Curtis, citing the amorphous law of Athens which had all jury and no judge in its courts, concludes:
“The law calls in a jury not only when it lacks confidence in its judges, but when the law lacks confidence in itself. * * *
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“ * * * There is nothing in the constitution which prevents us from putting the more rational of us on our juries, nor from judging this quality by the rule of thumb of success. And yet are we so sure that the more rational a citizen is the better he fulfills the irrational and intuitive element in our law, without which a court would be incomplete, only part of a man, sitting in judgment upon whole men?”
. On appeal Washington’s conviction was set aside. Washington v. State, Ala., 112 So.2d 179 .