
    (July 9, 1918.)
    STATE, Appellant, v. DONALD S. SIMPSON, Respondent.
    [173 Pac. 748.]
    Criminal Daw — Advisory Instruction to Acquit — Discretion op Court — Not Beviewable.
    1. The action of the trial court in giving an advisory instruction to acquit a defendant in a criminal case is in the judicial discretion of the trial court and is not subject to review on appeal.
    [As to what is reasonable doubt and instructions concerning the same, see note in 48 Am. St. 566.]
    APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. Wm. A. Babcock, Judge.
    Prosecution for unlawfully transporting intoxicating liquors.
    Judgment for defendant affirmed.
    
    A. F. James, Prosecuting Attorney for Gooding County, for Appellant.
    
      W. G. Bissell, for Respondent.
    Counsel cite no authorities on point decided.
   BUDGE, C. J.

This is an appeal from an instruction of the trial court advising the jury to find the defendant not guilty for the reason that the court deemed the evidence insufficient to warrant a conviction.

It was held by this court in a recent case that the giving of such an instruction “was clearly exercising a judicial discretion,” and that an appeal from such an instruction “presents no question which this court can rightfully review.” (State v. Murphy, 29 Ida. 42, 156 Pac. 908.)

Upon the authority of that case the judgment for defendant is affirmed.

Morgan and Rice, JJ., concur.  