
    REUBEN D. SMITH vs. STATE OF MARYLAND.
    
      Criminal Laiv: province of Court and Jury. Instructions by Courtj reversible error.
    
    Where a judge in a criminal case instructs the jury, and in his instructions makes assertions as facts as to matters which .had not been sustained by proof, and of which there was no evidence, it constitutes reversible error, although the instruction was only advisory in form. p. 566
    
      Decided January 22nd, 1913.
    
    Appeal from the Criminal Court of Baltimore City (ElI.IOTT, J.).
    The facts are stated in the opinion of the Court.
    The cause, together with Cochran v. State and Wagner v. State, was argued before. Boyd, C. J., Briscoe, Burke, Thomas, Pattisow and Stockbbidge, JJ.
    
      Edward L. Ward and Harry B. Wolf, for the appellant.
    
      Roland B. Marchant, William F. Broening and Edgar Allan Poe, Attorney-General, for the appellee.
   Briscoe, J.,

delivered the opinion of the Court.

The material questions presented on the record in this caso were considered and decided by us, in the cases of Cochran v. State and Wagner v. State, ante, pages 539 and 559.

In view of the fact, that the judgment in this case will have to be reversed and a new trial awarded, we will now proceed to consider those questions not raised on the appeal in the Cochran and Wagner cases, supra, but presented on this record.

The traverser in this case was indicted on the 29th day of December, 1911, in the Criminal Court of Baltimore, for a violation of the State Primary Election Law.

He was acquitted on the first to the ninth counts inclusive of the indictment and convicted on the tenth count, with a recommendation of mercy.

He was sentenced to one year in the Baltimore City Jail and to pay a fine of five hundred dollars and costs. From this judgment, he has brought this appeal.

The rulings of the Court on the demurrer, and on the various motions interposed in the course of tl^,trial and on the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh bills of exceptions, present almost the identical questions passed upon by us, in the Cochran and Wagner cases, supra, and we find it unnecessary to discuss them on this record.

The determination of the questions raised in those cases are conclusive as to the same questions presented on this record.

The twelfth and thirteenth exceptions relate to certain statements and instructions by the Court, to the jury, before they retired to consider their verdict, and they are set out in the record. After the Court’s instruction to the jury as set out in the eleventh bill of exceptions, and before the jury retired to consider the case, one of. the jurors asked the Court the following question:

(Juror) : May I ask a question?

(The Court) : Yes.

(Juror) : Did this man get any instruction from anybody?

(The Court) : Yes, from the Board of Election Supervisors.

To this statement of the Court to the jury the counsel for the traverser excepted and the error here complained of constitutes the twelfth exception.

The thirteenth exception will be considered with the twelfth and is as follows:

(Mr. Ward, Counsel): There is nothing in the record to support that (meaning the statement of the Court to the jury) in the traverser’s twelfth hill of exception where the Court said, “Tes, from the Board of Election Supervisors.” We would like to take an exception to that. Whereupon the Court further instructed the jury as follows:

(The Court) : “You can take it from me, if you will, and the gentlemen can except to it if it is not true — The Board of Supervisors gave these gentlemen full instructions. The testimony in this case is, that this particular traverser had acted three years previous to this election.”

While there was evidence that the traverser had served as a judge of election on other occasions, there was not a particle of evidence to support the statement made by the Court to the jury that the Board of Election Supervisors had given him full instructions. This statement was not only a palpable error upon the part of the Court, hut this error was accentuated by the further statement by the Court, set out in the thirteenth hill of exception to the effect that “You can take it from me, if you will, and the gentlemen can except to it if it is not true — The Board of Supervisors gave these gentlemen full instructions. The testimony in this case is, that this particular traverser had acted three years previous to this election.” The Court erred, and oxceeded its power, in making a statement of this character, to the jury, because it was not sustained by any proof, whatever, in the case, and it constitutes reversible error.

It therefore follows for these reasons, and for the further reasons stated in the opinion filed in the case of Cochran v. State and Wagner v. State, which apply with equal force in this case, that the judgment must he reversed and a new trial awarded.

Judgment reversed and new trial awarded.  