Page:North Dakota Reports (vol. 1).pdf/75

 trinsically probable, as a theory, as that advanced in the other direction by the trial court, viz., whether or not such testimony was “bold and brazen effrontery.”

We will conclude our comments upon this branch of the case by saying, briefly, that, where a trial court assumes to remark upon the weight of testimony, or upon testimony affecting the credibility of witnesses, it is treading upon delicate and dangerous ground, and cannot be too cautious about revealing its own opinion to the jury. If hypothetical suggestions are made at all to aid a jury in weighing the testimony, or in estimating the credibility of a witness, such suggestions should be impartial, and not look in one direction only. The statute regulating instructions in criminal cases allows the judge to “state the testimony,” but declares that he “must not charge the jury in respect to matters of fact.” See § 343, Code Crim. Proc. To say to the jury that the testimony of a material witness is unworthy of belief, whether the statement is made directly or by way of inference, is indirectly charging the jury as to matters of fact, and contrary to the spirit of the statute. The court can state the testimony, but is forbidden to charge or advise as to the facts. A different rule prevailed at the common law, and in some of the states; but the statute has changed the common-law rule in this jurisdiction. The authorities cited below are from jurisdictions where the matter of charging the jury is regulated by enactments similar to our own, and will fully sustain our views upon this branch of the case. See cases collated in 2 Thomp. Trials, §§ 2285-2287. See Thomp. Char. Jur. § 36. See, also, Dingman v. State, (Wis.) 4 N. W. Rep. 668; Lampe v. Kennedy. ( Wis.) 18 N. W. Rep. 730; People v. Lyons, 49 Mich. 78, 13 N. W. Rep. 365; Mawrich v. Elsey, 47 Mich. 10, 10 N. W. Rep. 57.

We will conclude this opinion by saying that it behooves this court, as a court of last resort, in deciding the first criminal case ever brought before it for review, and that a case of homicide, not to allow a prejudicial charge upon the facts, such as we conceive that given in this case to have been, to pass unchallenged, and thereby become a precedent. Our duty is, on the contrary, to make sure, at this early date in the history of