
    THOMPSON vs. THE STATE.
    [indictment fob malicious mischief.]
    X. Jury, province of; what charge invades. — A charge which assumes a fact to be proved, without referring to the jury the credibility of the evidence offered to prove it, and whether if credible it proves the fact, invades the province of the jury, and is therefore erroneous.
    Appeal from Criminal Court of Dallas.
    Tried before Hon. George H. Craig.
    The point upon which the case turns is fully stated in the opinion.
    --for appellant.
    J. W. A. Sanford, Attorney-General, contra.
    
   PECK, C. J.

The indictment in this case was found in the criminal court of Dallas county. The charge is, that the appellant, John Thompson, unlawfully and maliciously disabled a cow, the property of Stephen Tarrant, against the peace and dignity of the State of Alabama.

The trial was had on the plea of not guilty; the appellant was convicted and fined fifty dollars. On the trial a-bill of exceptions was signed and sealed at his instance, which set out all the evidence.

The court charged the jury in writing, to which the appellant excepted. In this charge, among other things, the court stated to tbe jury, “It has been testified to before you, that tbe cow proven to have been shot, was outside of tbe field in wbicb tbe corn of John Thompson was growing at tbe time of tbe shooting.” Was this proper to be said to tbe jury? or, in saying it, did tbe court invade tbe province of tbe jury? We think it was most clearly tkp latter. Tbe court assumed to tell tbe jury what was testified to, and what was proved, without leaving it to tbe jury to find from tbe evidence what was, or was not proved. It assumed as a fact that tbe cow was shot, and where she was at tbe time she was shot — -that she was outside of tbe field in wbicb tbe corn of John Thompson was growing, at tbe time of tbe shooting. This was a clear invasion of tbe province of tbe jury. A charge wbicb assumes a fact to be proved, without referring to tbe jury tbe credibihty of tbe evidence offered to prove it, and whether, if credible, it proves tbe fact, is an invasion of tbe province of tbe jury. It is tbe province of tbe jury, not of tbe court, to find Bom tbe evidence what is proved. The jury alone can determine tbe credibility of tbe evidence, and what it proves, and a charge that assumes to do this is erroneous. Shep. Dig. p. 460.

Tbe judgment is reversed, and tbe cause is remanded for a new trial.  