competent for them to look to circumstantial testimony, as, for instance, the acts and conduct of accused, to ascertain his guilt, such as his absconding and concealing himself for the purpose of escaping the laws, or his being possessed of or using large sums of money which he could not honestly account for," does not amount to an expression of opinion as to the guilt or innocence of the accused.'

§ 251. Comments on evidence.-Ordinarily the trial judge should not comment upon the evidence, but the evidence on both sides being sufficiently brought to the attention of the jury, it is not error to present some of the issuable facts in the form of questions; and they may properly be told that they may find any fact to be proven which may be rationally inferred from the evidence given, the whole of it being considered together.' So upon a prosecution for the larceny of one's own property from a person who had a lien upon it, the trial judge might properly comment to the jury upon respondent's omission to take proper legal proceedings.*

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§ 252. Charging as to matters of fact.-In some jurisdictions this is forbidden by statute; but where the court instructed the jury that if satisfied, beyond a reasonable doubt, that defendant killed, or had the calf killed by the witnesses, and that she then cut out the brand and cut off the ears of the calf, and burned up the ears and part of the hide so cut out, this would be a circumstance to be considered by you, indicating that the defendant was not the owner of the calf, and of her knowledge that she was not the owner,

1 Bulloch v. State, 10 Ga. 47; 54 Am. Dec. 369.

In State v. Jacob (30 S. C. 131) a witness for the State, B., identified the goods found in defendants' possession and alleged to have been stolen, relying on a private mark, but was directly contradicted by one defendant. The court charged: "Now, do you believe B.? It is not a question as to B.'s veracity. I have heard no evidence against her veracity. But counsel argue that B. was mistaken," etc., is not an expression of opinion on matters of fact.

2 McLain v. Com. 99 Pa. St. 86.

Burns v. State, 66 Ind. 428.

* People v. Long, 50 Mich. 249. Extent to which court may comment on the testimony,-see People v. Dunn, 53 Hun 381.

eve, it was held that the word "indicating," as used in the Pistruction, would be understood by the jury as tending to show a certain result, and that the language of the instruction was not in violation of the constitutional provision prohibiting the court from charging the jury with respect to matters of fact.'

$238, Misleading instructions. Instructions tending to mislead the jury are erroneous, and generally ground for reversal. Under this rule a charge which tells the jury that, if they can account for the loss of the" article alleged to have been stolen by the defendant, "on any hypothesis consistent with the defendant's innocence,- as, for instance, if the prosecutor left it" in a specified place, "or some other person than the defendant took it, then they must find him not guilty," is calculated to mislead the jury, as authorizing them to indulge in a supposition of facts not proved. So where the jury were instructed for acquittal in case the defendant in good faith purchased the stolen animals, but were further instructed that a fraudulent sale was no defense, it was held that the jury may have been misled by this latter instruction.' Again, where the trial court charged as follows: "If the jury have a reasonable doubt as to whether the defendant honestly, and in good faith, believing he had a legal right so to dispose of said sheep to Hester, * then they should

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give him the benefit of such doubt and acquit him," this was held error, inasmuch as the effect of such charge was to divert the minds of the jury from the prime issue in the case, which was a fraudulent taking by the defendant."

§ 254. Instructions assuming facts.-A charge is erroneous, and justifies a reversal, where it assumes both the corpus delicti and the inculpation of defendant as the thief. Thus,

1 State v. Loveless, 17 Nev. 424.

2 DuBois v. State, 50 Ala. 139. 3 Dreyer v. State, 11 Tex. App. 631. Deering v. State, 14 Tex. App. 599. See, also, State v. Owens, 79 Mo. 619. White v. State, 21 Tex. App. 339. So held, where on a trial for theft of a horse, defendant's counsel insisted that, as it was shown that defendant had executed a bill of sale of the horse, the sale could be proved only by the bill of sale, it was error to charge that "the sale of a stolen horse by a thief

where the possession by the prisoner of the property alleged to have been stolen has been proved by the state as a circumstance to establish guilt, it is error for the court to assume, in its charge to the jury, that such property was stolen, and then to charge that its possession by the defendant in a short time thereafter raised a presumption that he stole it, which, if not explained by him, would authorize the jury to find a verdict of guilty.' But an instruction reciting the taking and transferring of the stolen horse from the county where the indictment was found to another county, where it was disposed of, and ending that if the jury believed the assumed facts, "such taking" was larceny, is not sufficient to lead the jury to understand that the conversion in the other county was larceny.' And, on an indictment for larceny of a horse from one who held him as an estray, the theory of the defense being that the possession of the horse was voluntarily surrendered to defendant, an instruction which assumed that the person from whom the horse was taken had possession, is consistent with the defense, and not error.'

§ 255. Urging jury to agree. It is highly improper for the trial judge, when the jury comes in from their retirement, alleging their inability to come to an unanimous verdict, to importunately urge them to come to an agreement, adding a threat of withholding their discharge until they do so. Thus, where on a trial for theft, the jury, after being out eighteen hours, came in, and the foreman handed the judge a paper, whereupon he answered verbally, "I covered the point in my charge. The State pays you $2 a day, and unless

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is not required to be evidenced by a bill of sale in order to his being criminally prosecuted for the theft of the horse;" since such charge assumed that the horse was stolen, and that defendant was the thief.-Id.

1 Smathers v. State, 46 Ind. 447.

* Quinn v. People, 123 Ill. 333.

* Id. On trial for cattle-stealing, the court used the following language in instructing the jury: "If he (defendant) drove the steer in off the range, when it was the property of the corporation charged in the indictment," etc. Held, that this was not error, as it did not assume ownership, but was clearly hypothetical, and was preceded by the instruction that the proof must show, beyond a reasonable doubt, "that the steer belonged to the company as alleged."-Territory v. Jaggers, 9 Mont. 5.

you decide I will keep you here until Monday morning;" this conduct of the judge was held to be ground for setting aside the conviction.'

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§ 256. Instructions as to defense of alibi.—(a) Correct instructions. When an alibi is set up in defense and there is evidence tending to prove it, the law relating to alibi should be charged. In such a case it is not prejudicial error to charge that when the people make out such a case as would sustain a verdict of guilty, and the defendant offers evidence, the burden is on him to make out that defense; and as to an alibi, and all other like defenses that tend merely to cast a reasonable doubt on the case made by the people, when the proof is in, then the primary question is (the whole evidence on both sides being considered) whether defendant is guilty, beyond a reasonable doubt; the law being that when the jury have considered all the evidence, as well that touching the alibi as the criminating evidence introduced by the prosecution, then, if they have any reasonable doubt of the guilt of the accused, they should acquit; otherwise not. It is proper to instruct the jury that if, from the evidence, they have a reasonable doubt as to whether the defendant was at the place where the crime was committed, at the time, or was at the place where the evidence tends to show he was, they should find him not guilty, and that they should acquit him if they have a reasonable doubt whether he was so near the place of the crime as to have committed it. It is not error to charge that an alibi is a good defense, if proved to the satisfaction of the jury, and such a charge does not convey an intimation that the burden of proving it rests upon the prisoner. Where evi

1 Conn. v. State, 11 Tex. App. 390.

McAfee v. State, 17 Tex. App. 131.

3 Ackerson v. People, 16 N. E. Rep 847; Sheehan v. People, 131 Ill. 22; People v. Tarm Poi, 86 Cal. 225; People v. Chun Heong, 86 Cal. 329; State v. Maher, 74 Iowa 77, 82; State v. Standley, 76 Iowa 215; State v. Van Winkle, 80 Iowa 15; Rudy v. Commonwealth, 128 Pa. St. 500; State v. Ward, 61 Vt.

153.

4 Binns v. State, 46 Ind. 311; Caldwell v. State, 28 Tex. App. 566.

5 State v. Kelly, 16 Mo. App. 213.

State v. Starnes, 94 N. C. 973.

dence has been introduced tending to show that the defendant was at a place other than the place where the crime was committed, at the time of its commission, but where the exact time of the commission of the crime is not shown, but it is shown to have been committed during a night, or a part of a night, it is right to instruct the jury that evidence of an alibi must cover the whole of such time.' And it is proper to instruct the jury that fixing the time of a transaction occurring several days before, within an hour or a half-hour, without anything to fix the time, is uncertain."

1 West v. State, 48 Ind. 483.

Commonwealth v. Orr, 138 Pa. St. 276.

The following instructions as to this defense have been held correct: Instructions to scrutinize the testimony offered with care, and avoid being imposed upon by a fabricated defense, and also stating the effect of proving an alibi; not amounting to an instruction upon the weight of the evidence.-People v. Lee Gam, 69 Cal. 552.

A charge that, "to make an alibi available as a defense within itself, it must be so strong as to preclude the idea of the party's being at the place where the crime was committed at the time the crime was committed.”. Simpson v. State, 78 Ga. 91.

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A charge that "you should not convict defendant unless, after considering all the evidence introduced you are satisfied of his guilt beyond all reasonable doubt; and if after considering all the evidence introduced by the prosecution and all the evidence introduced by the defense, you entertain a reasonable doubt as to whether defendant has been identified as one of the persons present and participating in the offense charged, you should find him not guilty."-Mullins v. People, 110 Ill. 42.

An instruction that the introduction of false evidence of an alibi constituted a circumstance against defendant, and was an inferential admission of guilt, but not conclusive; that the fact that he had been guilty of introducing it should be established beyond all question; and that, if the evidence of such fact was doubtful, no weight should be given it.-State v. Ward, 61 Vt 153.

In charging upon alibi the court spoke of the "place of the alleged murder," and immediately afterwards of the "time and place of the murder." Held, the jury could not have considered the last phrase as an assumption that the crime had been proved.-People v. Chun Heong, 86 Cal. 329. The court charged: "Among other defenses interposed in this case by the defendant is what is known, in legal phraseology, as an ‘alibi;' that is, that, if the deceased was killed as alleged, the defendant was, at the time of such killing, at another and different place from that at which said killing was done, and therefore was not, and could not have been, the person who killed deceased. Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the deceased was killed (if killed), at the time of such killing, then you should