A writ of prohibition will not issue to prevent an inferior court from trying an action once properly before it, but claimed to have been afterwards dismissed, as the question of dismissal was a proper one for the inferior court to decide; nor will the writ issue upon the elaim that the action has been transferred to the circuit court of the United States, as that question is also a proper one for the inferior court to decide, subject to appeal, and for the further reason that the decision of this court would not be final should the United States court decide otherwise and remand the action to the state court for trial, and in either event error in the inferior court is only reviewable on appeal or by petition to the United States court. Walcott v. Wells, 21 Nev. 47 (37 A. S. 478, 9 L. R. A. 59, 24 P. 367). A writ of prohibition cannot ordinarily be used to correct errors by inferior tribunals, and will not issue either in civil or criminal proceedings, where there is an adequate remedy by appeal or writ of certiorari. Where an action was brought to recover possession of certain mining ground on an agreement containing a provision for plaintiff's taking possession of and working the mines, and the court had original jurisdiction to hear and determine the issues, if it erred in ordering judgment Judicial districts. for plaintiff for possession and for an accounting, or for damages for defendant's refusal to deliver possession under the agreement, its decision was reviewable by appeal only, and not on a writ of prohibition. Where defendants, in an action to recover a mining claim, contended that a provision of the decree in favor of plaintiff and directing an accounting was not within the issues, whether the court had jurisdiction to decree such an accounting was reviewable by appeal, and not by a writ of prohibition. Silver Peak Mines et al. v. Second Judicial District Court, 33 Nev. (110 P. 503). While the great function of the writ of prohibition is to restrain courts and judicial tribunals from exceeding their jurisdiction, nevertheless, the writ has not been restricted exclusively to such class of cases, but it has run to other officers exercising or attempting to exercise judicial or quasi-judicial functions beyond their powers, where no other adequate remedy existed. State ex rel. Schloss v. Stevens, 33 Nev. — (116 P. 105). The power conferred upon the supreme court to issue writs of mandamus, quo warranto, and other writs is an original jurisdiction, and not merely auxiliary to its appellate jurisdiction. Curtis v. McCullough, 3 Nev. 202, 214. 215, 216. 320. SEC: 5. The State is hereby divided into Nine Judicial Districts of which the County of Storey shall constitute the First; The County of Ormsby the Second; the County of Lyon the Third; The County of Washoe the Fourth; The Counties of Nye and Churchill the Fifth; The County of Humboldt the Sixth; The County of Lander the Seventh; the County of Douglas the Eighth; and the County of Esmeralda the Ninth. The County of Roop shall be attached to the County of Washoe for judicial purposes until otherwise provided by law. The Legislature may, however, provide by law for an alteration in the boundaries or divisions of the Districts herein prescribed, and also for increasing or diminishing the number of the Judicial Districts and Judges therein. But no such change shall take effect, except in case of a vacancy, or the expiration of the term of an incumbent of the office. At the first general election under this Constitution there shall be elected in each of the respective Districts (except as in this Section hereafter otherwise provided) one District Judge, who shall hold Office from and including the first Monday of December A. D. Eighteen hundred and Sixty four and until the first Monday of January in the Year Eighteen hundred and Sixty seven. After the said first election, there shall be elected at the general election which immediately precedes the expiration of the term of his predecessor, one District Judge in each of the respective Judicial Districts (except in the First District as in this Section hereinafter provided). The District Judges shall be elected by the qualified electors of their respective districts, and shall hold Office for the term of four Years (excepting those Elected at said first election) from and including the first Monday of January, next succeeding their election and qualification; Provided, that the First Judicial District shall be Entitled to, and shall have Three District Judges, who shall possess co-extensive and concurrent jurisdiction, and who shall be elected at the same times, in the same manner, and shall hold office for the like terms as herein prescribed, in relation to the Judges in other Judicial Districts, any one of said Judges may preside on the Empanneling of Grand Juries and the presentment and trial on indictments, under such rules and regulations as may be prescribed by law. The act of March 12, 1867, constituting Linen County, the Ninth Judicial District (Stats. 1867, p. 129), is not in conflict with this secion. State ex rel. Leake v. Blasdel, 6 Nev. #. 41. The said act in so far as it provided that the district judge to be elected in 1868 should old his office for two years from January 1, 19, did not violate the provisions of this sec...n. The constitution contemplates that the tion of district judges throughout the state T. C. C. pp. 198, 483, 488. shall all occur at the same time; and it is competent for the legislature to provide that a judge to be elected at another time shall hold until the time of such general election of judges, though it may not give him a full term of four years. Where a full term of the office of district judge is to be filled, the failure to give notice of election (such as is required when a vacancy is to be filled) will not vitiate an election. State ex rel. Hubbard v. Gorin, 6 Nev. 276, 277. 278, 279. In construing the provisions of this section, held, that the legislature had the power to reduce the number of district judges in the first judicial district. Cited, State ex rel. Aude v. Kinkead, 14 Nev. 117, 120, 122, 123. Cited, State ex rel. Perry v. Arrington, 18 Nev. 416 (4 P. 735). Cited. State ex rel. Coffin v. Atherton, 19 Nev. 337, 338, 340 (10 P. 901). By Stats. 1865 (p. 60) the State of Nevada was made one judicial district, with but one judicial officer in connection therewith, to wit: The office of district judge, and three district judges, each having equal and coextensive jurisdiction and powers throughout the state to hold district court in any county and to exercise all duties pertaining to the office of district judge. The constitutionality of this statute was affirmed by the supreme court in State ex rel. Coffin v. Atherton, 19 Nev. 332. While this statute was in operation the legislature by statute of 1889, p. 122, increased the number Jurisdiction of District Courts. of district judges to four, and directed the governor to immediately appoint an additional district judge to hold office until the next gen eral election, when four district judges should be elected. Under the latter statute the governor appointed respondent district judge, who, at the time of the commencement of this proceeding, has held such office and exercised the functions thereof for more than a year with the acquiescence and recognition of the state, county officers and the people generally. Held. that irrespective of the question of the constitutionality of the statute of 1889, respondent is a de facto district judge and that his official acts are valid so far as the rights of third persons or the public are concerned. (Belknan, J., dissenting.) Walcott v. Wells, 21 Nev. 47, 64 (37 A. S. 478, 9 L. R. A. 59, 24 P. 367). Cited, State v. Burrali, 27 Nev. 47 (71 P. 532). Nevada Cons. Deb. & Pro., pages 650, 651. 713. cited in State v. Kinkead, 14 Nev. 121. with reference to this section. 321. SEC: 6. The District Courts in the several Judicial Districts of this State shall have original jurisdiction in all cases in Equity; also in all cases at law which involve the title or the right of possession to, or the possession of real property, or mining claims, or the legality of any tax, impost, assessment, toll or municipal fine, and in all other cases in which the demand (exclusive of interest) or the value of the property in controversy exceeds Three Hundred Dollars, also in all cases relating to the estates of deceased persons, and the persons and Estates of Minors and insane persons, and of the action of forcible entry and unlawful detainer; and also in all criminal cases not otherwise provided for by law; They shall also have final appellate jurisdiction in cases arising in Justices Courts, and such other inferior tribunals as may be established by law. The District Courts, and the Judges thereof shall have power to issue writs of Mandamus, Injunction, QuoWarranto, Certiorari, and all other writs proper and necessary to the complete exercise of their jurisdiction; And also shall have power to issue writs of Habeas Corpus on petition by, or on behalf of any person held in actual custody in their respective districts. T. C. C. pp. 179, 483, 488. Though the constitution of the state confers the jurisdiction of cases of forcible entry and unlawful detainer on the district courts, the courts of justices of the peace continue their jurisdiction of such cases until the organization of the district courts under the state authority. The purpose of this section was not to suspend the operation of the laws of the territory. The former judiciary system was intended to be, and was continued in existence until the new one should be in a condition to exercise its functions. Armstrong v. Paul, 1 Nev. 134, 137. 138, 139. The appellate jurisdiction of the district court on appeal from a justices' court is final, and no appeal lies from its action as such appellate court. ('ited. Paul v. Beegan, 1 Nev. 329, 331; Leonard v. Peacock, S Nev. 157, 161. The constitution confers jurisdiction on the district court to hear and determine actions of forcible entry and detainer without any special legislative enactment on the subject. The forcible entry act, so far as it defines forfeitures, is in force. That part of it which directs what court shall assume jurisdiction is Suspended and altered by the constitution. Hoopes v. Meyer, 1 Nev. 433, 440, 441. Where a district court, acting under this section, dismissed an appeal from a justices' court, the action having been in the exercise of jurisdiction, it could not be reviewed on er tiorari. Andrews v. Cooke, 28 Nev. 265, 269 (S1 P. 303). This section vests in the district court jurisdiction in all cases relating to the persons and estates of minors; and its judgment cannot be successfully resisted until reversed or modified by some proceeding impeaching it. It is conclusive, not only against the guardian himself. but also against the sureties upon his official bond. Whatever binds and concludes the guardian equally binds and concludes his sureties. In guardianship matters where the judgment of the district court is collaterally attacked, the jurisdiction of the court is conclusively presumed and evidence to the contrary is not admissible. Deegan v. Deegan, 22 Nev. 18%, 197 (58 A. S. 742, 37 P. 360). Cited State ex rel. Coffin v. Atherton. 19 Nev. 337 (10 P. 901). The expression "all cases at law," used in this section has no application whatever to criminal cases. State ex rel. Murphy v. Rising, 10 Nev. 97, 100, 101, 103. The district court has jurisdiction of an action brought to recover money paid under protest for an illegal tax. although the amount in controversy is less than three hundred dol lars. Robinson v. Longley, 18 Nev. 71, 73 (1 P. 377). Under the constitution and statutes of this state an equitable defense to an action cannot be plead in the justices' court. Duffy v. Moran, 12 Nev. 94, 96. Cited, Wearne v. Haynes, 13 Nev. 105. A justice of the peace has jurisdiction of an action against a county for a sum less than $300. Floral Springs Water Co. v. Rives, 14 Nev. 431. Cited, Cavanaugh v. Wright, 2 Nev. 167, 168. A suit for the recovery of money may be brought in a district court by simply claiming $300 or upwards, although less may be actually due; but if less than $300 is recovered, the plaintiff is not entitled to costs. The test of the jurisdiction of the district courts in cases of money demands is the amount claimed in the complaint-the demand in controversy being the sum sought to be recovered by plaintiff, and not that for which he actually recovers judgment. The language of the constitution conferring jurisdiction upon the supreme court in cases of money demands is identical with that of this section, respecting the district courts, and whenever the district court has jurisdiction in Terms of court. the first instance, the supreme court has jurisdiction to review its action on appeal. Klein v. Allenbach, 6 Nev. 159. 162. An action for "wrongfully, unlawfully, and forcibly breaking and entering into real estate and unlawfully and forcibly ousting the possessor and ever since said forcible ouster unlawfully and forcibly holding possession thereof," is an action of forcible entry and unlawful detainer within the meaning of this section and is not within the jurisdiction of a justice of the peace. As a justice of the peace has no jurisdiction of an action of forcible entry, a district court has no jurisdiction thereof on appeal; and its proceedings and judgment to the contrary will be annulled on certiorari. Peacock v. Leonard, 8 Nev. 84, 88. See citation Moore v. Orr, 30 Nev. 458 (98 P. 398), under section 1 of this article. The constitution gives to district courts final appellate jurisdiction over cases arising in justices courts. The district court may dismiss an appeal, or it may proceed and try it de novo. But it cannot refuse to do one thing or the other. Bancroft v. Pike, 33 Nev. (110 P. 2). Nev. Cons. Deb. & Pro., pp. 718, 720, cited in Moore v. Orr, 30 Nev. 469, with reference to this section (98 P. 398). 322. SEC: 7. The times of holding the Supreme Court and District Courts shall be as fixed by law. The terms of the Supreme Court shall be held at the seat of Government; and the terms of the District Courts shall be held at the County seats of their respective counties; Provided, that in case any county shall be hereafter divided into two or more districts, the Legislature may, by law, designate the places of holding Courts in any such Districts. T. C. C. pp. 484, 491. Prior to Stats. 1895, p. 60, sec. 5, the terms of the district courts had been differently fixed. That section provided that they should always be open for the transaction of business; and section 9 provides that courts shall be held in every county at least once in every six months. Section 9 was repealed by Stats. 1895, p. 56, which, however, retained the proviso that court should be held in each county at least once in every six months: Held, that there are no terms of the district court; the courts being always open and sessions had at the convenience of the judges and as the business may require. State v. Jackman, 31 Nev. 511, 510. 517 (104 P. 13). counties of large area, with populations gathered about different centers. It could have no application to a small county with its whole population at the county-seat. State ex rel. Aude v. Kinkead, 14 Nev. 117, 122. The provision in section 9 of the act to redistrict the state (Stats. 1885, p. 60), that the court shall be held in each county at least once in every six months is in compliance with this section. State ex rel. Coffin v. Atherton, 19 Nev. 332, 347 (10 P. 901). Under this section (Stats. 1903. p. 198, c. 104), directing that the sittings of the district court shall be held at a certain town whenever the people of that portion of the county lying nearer or more conveniently situated to that town than to the county-seat shall be accommodated thereby, is void. Ex parte Wonacott, 27 Nev. 102, 105 (73 P. 661). The proviso to this section does not prove, it has no tendency to prove, that the convention intended to deprive the legislature of the power to assign more than one judge to a district. That was a provision for the benefit of Justices of the Peace-Jurisdiction limited-Regulating appeals-What are Courts of Record. 323. SEC: 8. The Legislature shall determine the number of Justices of the Peace to be elected in each city and township of the State, and shall fix by law, their powers, duties and responsibilities, Provided, that such Justices Courts shall not have jurisdiction of the following cases, viz: First, of cases in which the matter in dispute is a money demand, or personal property; and the amount of the demand (exclusive of interest) or the value of the property exceeds Three Hundred Dollars; Second, of cases wherein the title to real estate, or mining claims, or questions of boundaries to land, is or may be involved; or of cases that in any manner shall conflict with the jurisdiction of the Several Courts of Record in this State; and Provided further, that Justices Courts shall have such criminal jurisdiction as may be prescribed by law; and the Legislature may confer upon said courts, jurisdiction concurrent with the District Courts, of actions to enforce mechanics liens, wherein the amount (exclusive of interest) does not exceed Three hundred dollars; and also of Actions for the possession of lands and tenements where the relation of Landlord and Tenant exists, or when such possession has been unlawfully or fraudulently obtained or with-held. The Legislature shall also prescribe by law, the manner, and determine the cases in which appeals may be taken from Justices and other Courts. The Supreme Court, the District Courts, and such other Courts, as the Legislature shall designate, shall be Courts of Record. T. C. C. pp. 204, 209, 485, 490. Courts of justices of the peace being the mere creatures of statue, have no jurisdiction except that which is expressly granted to them by law. This provision does not extend the jurisdiction of justices of the peace, but only restricts the power of the legislature, and justices courts could not by virtue of the constitution alone, and without an act of the legislature, take jurisdiction of cases where the demand was $300. The constitution merely confers power upon the legislature, and does not in this respect define the jurisdiction of those courts. Paul v. Beegan, 1 Nev. 327, 329, 330. Under the provisions of this section the legislature may prescribe the mode of proceeding on appeal from a justice's court to the district court. That mode may be by trial de novo, or a mere review of the justice's proceedings, as the legislature choose to direct. Cavanaugh v. Wright, 2 Nev. 166, 167. Under this section the legislature alone can determine the number of justices of the peace for each township, and the office must be filled by popular election; so that the act of March 5, 1867 (Stats. 1867, p. 87) providing for the appointment of additional justices of the peace by the county commissioners in certain cases is unconstitutional. Although the power may exist in the legislature to provide otherwise than by election for the filling of the office of justice of the peace in case of emergency or special occasion, such as a vacancy, or the creation of a new office, it cannot delegate the power to determine the number of justices for the townships, nor can it provide that the office is to be filled under general laws otherwise than by popular election. State ex rel. Bull v. Snodgrass, 4 Nev. 524-526. Our statute does not provide for or create any such offense as an "unlawful" as distinguished from a "forcible entry," within the meaning of the term "unlawful" as employed in this section. Peacock v. Leonard, 8 Nev. 84, 88. Justices of the peace have jurisdiction to try an action for malicious injury to real estate in cases where the defendant claims an adverse title to the property. State ex rel. Murphy v. Rising, 10 Nev. 97, 100–103. Possible municipal courts. Where a suit to foreclose a mechanic's lien is brought in a justice court and appealed to the district court: Held, that an appeal lies from the district court to the supreme court. Dixon v. Corbett, 10 Nev. 439, 444. Under the constitution and statutes of this state, an equitable defense to an action cannot be plead in a justice's court. Duffy v. Moran, 12 Nev. 94. Cited, Floral Springs Water Co. v. Rives, 14 Nev. 434. In an action in the justice's court for trespass on plaintiff's land defendant testified that, so far as he knew, the title to the land was in plaintiff. There was a failure to prove that plaintiff had the patent right to a particular eighty acres of land, but it was not shown that she did not have a prior possession thereto, nor did it appear whether the trespass was committed on all the lands claimed by plaintiff, or only on lands other than the eighty acres. Held, not to show that the right to real property was necessarily involved within this section. State ex rel. Launiza v. Justice Court, 29 Nev. 191, 197, 201 (87 P. 1). See Moore v. Orr. 30 Nev. 458, 461 (98 P. 398). Under this section, and Comp. Laws, 3835, authorizing actions in justice's courts against a tenant unlawfully holding over, etc.. a justice court has jurisdiction to render judgment for plaintiff for the restitution of real estate, for rent due, and for damages for deprivation of the premises, where defendant in his answer admits the the execution of the lease and the payment of rent under it, as such admission establishes the relation of landlord and tenant. Under this section, a judgment in a justice court for $396 treble damages for a tenant wrongfully withholding possession of the premises, and for $100 rent due, is void because beyond the jurisdiction of the court. Fitchett v. Henley, 31 Nev. 326, 327, 332, 335 (102 P. 865). See Moore v. Orr, 30 Nev. 458, 460 (98 P. 398). It may be that the district court would have power to remand in cases where a justice of the peace had erroneously certified a case to the district court upon the mistaken theory that a question involving the title to real estate, or the legality of a tax, impost, assessment, toll, or municipal fine was involved. Bancroft v. Pike, 33 Nev. (110 P. 2). 324. SEC: 9. Provision shall be made by law prescribing the powers, duties and responsibilities of any Municipal Court that may be established in pursuance of Section One, of this Article; and also fixing by law the jurisdiction of said Court, so as not to conflict with that of the several courts of Record. T. C. C. p. 209. The power which may be conferred upon municipal courts is restricted by section one of this article, by which the jurisdiction of courts cannot be extended beyond municipal purposes. Storey, 5 Nev. 244, 249. Meagher v. County of Judicial officers not to receive fees or perquisites, exception. 325. SEC: 10. No Judicial Officer, except Justices of the Peace and City Recorders, shall receive to his own use any fees or perquisites of Office. T. C. C. C. pp. 484, 491. The prohibition contained in this section, against the judges receiving to their own use. "any fees or perquisites of office," does not apply to "the necessary expenses actually paid by them for traveling by public conveyance, in going to and from the place of holding court." State ex rel. Coffin v. Atherton, 19 Nev. 333, 346 (10 P. 901). The compensation allowed the trustee under Stats. 1869, 68, sec. 7, is not a fee or perquisite of the office of district judge, and hence does not come within the prohibition of this section. While the respondent became townsite trustee by virtue of his office as district judge, and while as such trustee certain of his duties were judicial or discretionary in character and others ministerial, his trusteeship was at all times separate and distinct from his office as district judge. State ex rel. Jennet v. Stevens, 33 Nev. (116 P. 601). Eligibility to office limited. 326. SEC: 11. The Justices of the Supreme Court and the District Judges shall be ineligible to any Office, other than a Judicial Office, during the term for which they shall have been elected; and all elections or appointments of any such Judges by the people, Legislature or otherwise, during said period, to any Office other than Judicial, shall be void. T. C. C. pp. 214, 485, 492. The trusteeship of a federal townsite as provided in Stats. 1869, 68, is not an office within the meaning of this section. State ex rel. Jennet v. Stevens, 33 Nev.- (116 P. 601). Judges not to charge as to matters of fact. 327. SEC: 12. Judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law. T. C. C. pp. 214, 485, 492. It is error for the judge to give his opinion to the jury as to the weight or sufficiency of testimony. In a trial for murder a judge should not give it as his opinion to the jury that they should find the prisoner guilty of murder in the first degree, or acquit. The grade of the offense is a question of fact which should be left entirely to the jury. When a killing has been shown, the presumption arises that murder has been committed. But there is no presumption that it is murder in the first degree in a case of this kind. If the defendant claims that it is only manslaughter, the proof devolves on him to show the circumstances, thus reducing the grade of offense. If the prosecution claims that it is murder in the first degree, it devolved upon the state to show the aggravating facts. An instruction in the following language is erroneous: "The testimony in this case tends to show the property of the deceased, or some portion of the same, in the possession of the defendant at the time subsequent to the alleged murder, and at quite a recent date." This instruction assumes that the property found was, or had been the property of deceased. The expression "tends to prove" only applies to the tendency of the evidence to show when the property was found, but does not apply to question of ownership. State v. Millain, 3 Nev. 409, 44′′. 468, 472, 475. 476, 481. See dissenting opinion of Lewis. J., p. 468. This provision was intended to prevent judges from charging that facts testified to are or are not established; but was not intended to prevent, and does not prevent, them from charging what would be the legal effect of facts if found to be established. State v. Anderson, 4 Nev. 266. A charge in a criminal case that "it is the duty of the jury to candidly consider whether in the eye of sound reason these sufficient facts and circumstances detailed In the evidence, pointing beyond reasonable doubt to the existence of the acts and intent as charged in the indictment; and if you so conclude in your minds you must, as Jurors upon your oath. so declare," amounts to a charge that the facts detailed in the evidence are sufficient to establish the offense, and that the evidence points to the existence of the acts and intent beyond a reasonable doubt and is error sufficient for reversal. Any ambiguity in the charge in a criminal case which may have a tendency to mislead the jury should entitle the accused to a new trial: for every person charged with a public offense has the right to have the evidence weighed by the jury uninfluenced by the opinion of the de respecting it-in all respects to have a fair and impartial trial. free from every prejudicial irregularity. and from everything which may so involve the case as to render it difficult or impossible for the jury to arrive at an intelligent conclusion. State v. McGinnis, 5 Nev. Where, in charging the jury in a criminal case the court used the expression "the guilt of the defendant sts upon what is known as circumstantial evidence": Hed that there was a direct assumption of the guilt of defendant and therefore manifest error. The assumption by a judge in his charge in a criminal case, that any material fact upon which there is any outflet of evidence is proved, is error. The provisions of this section, whether it be wise and wrolesome or not, must be fully enforced both in letter and spirit. Where in a criminal case, the court in charging the 4) said. "the guilt of the defendant rests upon circumstantial evidence": Held, that although evidently what was intended to be said was that the charge of guilt rested on circumstantial evidence, yet the words expressed a totally different meaning and constituted isa' error. State v. Duffy, 6 Nev. 138, 139, 140. On a murder trial the judge instructed the jury that under the law and evidence it would not be justified in finding a verdict for any higher grade of offense than manslaughter: Held, on appeal by defendant, not necessarily a charge that the state had made out a case of manslaughter. Where a jury in a murder case was charged that it would not be justified under the law and evidence, in finding a verdict for any higher grade of offense than manslaughter: Held, that though the instruction (which was authorized by section 376 of the Criminal Practice Act) might be repugnant to this section, yet it was not to defendant's prejudice, and he could not complain. State v. Little, 6 Nev. 281, 282.. Where the court in a criminal case instructed the jury that "circumstantial evidence is more satisfactory than the testimony of a single individual, who swears he has seen a fact committed": Held, error. State v. Van Winkle, 6 Nev. 340, 349. Where, in a murder case, the judge, after giving the statutory definition of the crime, used the following language: "Such is the law which you as jurors are called upon to vindicate," etc. Held, that, though the instruction might have been only meant to enjoin the jury to assert and maintain the law, it would have been better to have told the jury so, and still better to have omitted that portion of the charge altogether. A judge in a criminal case has no right to intimate an opinion upon the facts, either directly or by innuendo; and the effect of such an opinion, expressed or indicated, cannot be obviated by announcing the jury's independence of him in all matters of fact. A defendant in a criminal case has the right to the deliberate, independent, voluntary and unbiased judgment of the jury upon the truth of his theory or hypothesis of the case, without having the force of his position weakened by an instruction or intimation that even if they convict him they will not greatly err. State v. Ah Tong, 7 Nev. 148, 152. In a murder case where it appeared that defendant had kicked deceased in the face, but the prosecution contended that the killing was by a kick upon the breast, and offered testimony to show bruises there; and the judge, in overruling objections to such testimony, remarked, in the hearing of the jury, "that there was as much testimony that defendant had kicked deceased upon the chest as upon the face": Held, error, as charging in respect to matter of fact. The opinion of a judge in respect to a matter of fact in a criminal case can be as effectively conveyed to the jury by expressing it in their hearing while ruling upon an objection to evidence, as by embodying it in an instruction to them; and he has no more right to volunteer such an opinion in one case than in the other. Where a judge, in the course of a murder trial, in overruling an objection to testimony tending to show that defendant had kicked deceased fatally in the breast, remarked, "that there was as much testimony that defendant had kicked deceased upon the chest as upon the face," and afterward took occasion to state to the jury that in making the remark he was simply ruling upon an objection to testimony, and addressing himself more directly to counsel, and that he did not wish to be understood as saying how much or how little testimony there was upon any particular point, and that the whole matter was for them to pass upon: Held, that the error of the remark, if curable at all, was not cured by the caution-there being no retraction of his opinion, but merely a disclaimer of opinion as to the absolute weight of such testimony. If a judge, in the course of a criminal trial expresses in the hearing of the jury his opinion as to a matter of fact, the injury to defendant demands redress as imperatively in the case of a mere inadvertence on his part as in case |