
    Duncan v. The State.
    Atkinson, J. — 1. Where, in a trial for rape, the contention of the accused was that he had no connection whatever Avith the perpetration of the offense, it was error, in charging the jury with reference to the alleged crime, to use the following expressions: “Now you will have reference and cognizance of the evidence in the case which connects the defendant with it.” “ But if you do not believe that upon consideration of the’whole evidence and weighing the whole of it, that the defendant’s testimony outweighs that of the State, which places the man (the accused) there at the time, then you should not believe the alibi.” The expressions contain intimations of opinion on the part of the presiding judge that the accused was connected with the perpetration of the crime and that he was present at the place where it was committed; and therefore, under section 3248 of the code, a new trial must be granted.
    .2. While other rulings and charges of the presiding judge are not entirely free from criticism, there was not in any of them, save as indicated in the preceding note, any error requiring the granting of a new trial.
    February 18, 1895.
    By two Justices.
    Indictment for rape. Before Judge Clark. Eulton ¡superior court. September term, 1894.
    John Clay Smith and Peter Erancisoo Smith, for plaintiff’ in error. C. D. Hill, solicitor-general, contra.
    
   Judgment reversed.  