| Cal. | Jul 1, 1868
In the course of its instructions to the jury, the Court below used the following language: “ The defendant is charged with having murdered, in this county, on or about the 12th day of May, 1866, one S. M. Simpson. How, the first question for your decision is this : Was S. M. Simpson, on or about the 14th day of May, 1866, in this county, murdered ? In determining that question, the Court thinks, you can have no hesitation whatever.”
And at another place the following: “ Aside from the testimony given as to the statements of the defendant himself, as claimed to have been made by him, there is no evi
It is claimed on the part of the appellant, that, in using the foregoing language, the Court below erred.
The record contains no part of the testimony, and it is well settled that this Court will not, where such is the case, reverse the judgment on account of instructions alleged to be erroneous, unless it appears that such instructions would have been erroneous under every conceivable state of facts. (The People v. Levison, 16 Cal. 98" court="Cal." date_filed="1860-07-01" href="https://app.midpage.ai/document/people-v-levison-5434436?utm_source=webapp" opinion_id="5434436">16 Cal. 98; The People v. King, 27 Cal. 514; The People v. Dick, 32 Cal. 213" court="Cal." date_filed="1867-07-01" href="https://app.midpage.ai/document/people-v-dick-5436313?utm_source=webapp" opinion_id="5436313">32 Cal. 213.) This results from the rule, that the party alleging error must show it affirmatively. In view of this rule, we cannot say that the Court erred in telling the jury, that, aside from the evidence as to statements made by the defendant himself, there was no evidence before them that any person, other than Simpson and the defendant, was at Simpson’s cabin at the time the supposed homicide was committed. As we held in King’s Case, the seventeenth section of Article VI of the Constitution does not prohibit the Judge from stating the evidence in his charge; and the right to state the evidence includes the right to state that there is no evidence as to particular facts. (27 Cal. 513.) Hence, to so state may or may not be error, and whether it is or not, can be determined only upon an inspection of the testimony. When the appellant relies upon such a statement as error, he must bring up so much of the evidence as he claims proves or tends to prove the fact or facts in question, otherwise we must presume in favor of the action of the Judge.
We are of the opinion, however, that the other portion of the charge noted is within the clause of the Constitution which prohibits Judges from charging juries upon matters of fact, (Art. VI, Sec. 17,) and are unable to conceive of any state of facts under which, in view of that restriction, a Judge can be allowed to address such language to a jury.
Whether wisely or not, the Constitution has abrogated the rule of common law by which Judges were allowed to express their opinions as to the facts in issue, or as to the weight of evidence.
To weigh the evidence and find the facts is, in this State, the exclusive province of the jury, and with the performance of that duty the Judge cannot interfere without a palpable violation of the organic law.
Whether the verdict was a nullity, it is unnecessary to say. It was certainly informal, and the Court ought to have explained its defects to the jury and directed them to put it in proper form.
Judgment reversed and new trial granted.