
    State of Minnesota vs. Mark Kobe (2d Case.)
    August 8, 1879.
    Charge — Expression of Opinion on Facts. — In a criminal case it is error for tlie court in its charge to indicate to the jury its opinion of the facts, unless it inform, them that they are the exclusive judges of all questions of fact.
    Appeal by defendant from a judgment of the district court for Benton county, McKelvy, J., presiding.
    
      L. W. Collins and Taylor é Storey, for appellant.
    
      Geo. P. Wilson, Attorney General, for the State.
   Gilfillan, C. J.

An indictment for selling fermented and not malt liquors. The same objections are made to the indictment as to that against this defendant, for selling spirituous liquors, decided at this term, and so far as they are concerned, this case follows that. Upon a trial before a jury, the court, in its charge, used the following language: “I shall not try many more cases of this character, unless something comes of it.” From this the jury might infer that in the opinion of the court there ought to be a conviction. It indicates an opinion of the facts. The statute (Gen. St. c. lié, § 121,) provides that the court, in a criminal trial, “if it presents the facts of the case, shall, in addition to what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact.” Under a similar provision in regard to trials of. ci vil actions, this court held, in Caldwell v. Kennison, 4 Minn. 23, (47,) that for a judge in his charge to express an opinion upon the facts is error, for which a new trial will be ordered. In that case, as in this, the court did not, as the statute requires, inform the jury that they are the exclusive judges of the facts. That omission makes the indication of an opinion on the facts error. It is to be regretted that a ease must be sent back for retrial for a remark that must have been inadvertent; but there is no other course.

Judgment reversed and new trial ordered.  