Syllabus. [20 Wash. juror Gildea on the voir dire. For the purpose of enabling counsel to intelligently exercise his right of peremptory challenge, it was proper enough to permit the question to be asked of the juror whether he entertained any prejudice against the people of the Jewish faith. This the court permitted, but the next ensuing question, viz., "Would the testimony of witnesses who professed that faith receive as much credit as members of any other faith?" was, we think, very properly ruled out on the authority of State v. Holedger, 15 Wash. 443 (46 Pac. 652). The court did not err in refusing to discharge juror Williams after the trial had commenced, upon the claim that he had been guilty of falsehood and concealment in his voir dire examination. We are convinced that the juror answered frankly and concealed nothing that he was called upon to reveal, by any fair construction of the questions. directed to him. We think the case was fairly tried, and the verdict justified by the evidence. The assignments of alleged error not specifically noticed are considered to be without merit, and the judgment is affirmed. 20 234 23 660, 23 661 20 234 e30 547 No. 3141. Decided November 25, 1898.] THE STATE OF WASHINGTON, Respondent, v. EDGAR CRIMINAL LAW-COMMENT ON EVIDENCE-MISCONDUCT OF JUDGE. Under art 4, § 16, of the constitution, which provides that "judges shall not charge juries with respect to matters of fact, nor comment thereon," it is reversible error for the court, though requested by the jury because of a disagreement as to their recollection of the testimony, to state to the jury that his notes showed that a witness testified to a certain fact, and that he did not recall whether he testified to a certain other fact concerning which the jury requested information. Nov. 1898.] Opinion of the Court― GORDON, J. Appeal from Superior Court, Pierce County.-Hon. JAMES A. WILLIAMSON, Judge. Reversed. Fred T. Peet, and Murry & Carroll, for appellant. A. R. Titlow, Prosecuting Attorney, and Hugh Farley, for The State. The opinion of the court was delivered by GORDON, J.-Conviction for an assault with intent to rob, and the defendant appeals. But a single question requires consideration. At the trial, P. J. Concannon, a police officer of the city of Tacoma, who had arrested the defendant, was examined as a witness for the state. After the jury had been charged by the court and had been out about an hour, they sent word to the judge that they desired to be further instructed in the case. We quote from the record: in the presence of the presiding judge, the said appellant and counsel for both sides, said jury were brought back into the court room. Said jury then saidthrough their foreman-that they disagreed in their recollection of the testimony of P. J. Concannon (who was one of the witnesses for said respondent in said trial) as to admissions made to him, Concannon, by appellant, some remembering the testimony to the effect that Concannon swore that appellant said to him after the arrest that he, appellant, struck the blow; and others not remembering that Concannon so stated, and the jury asked the court what he did say. "The court said: 'Gentlemen, as I have already charged you, you are the sole judges of the weight of the testimony and credibility of the witnesses; and it is your province to remember what the testimony is; I will say, however, that my notes show that Concannon testified that appellant on the way to the station admitted to him (Concannon) that he struck the prosecuting witness the blow."" It is conceded that the testimony of Concannon was cor Opinion of the Court- GORDON, J. [20 Wash. rectly stated by the court, and again we quote from the record: 66 thereupon, juryman A. C. Campbell remarked to the court that detective Concannon had also testified that at the same time appellant said 'we got nothing,' to which inquiry the court informed the jury that he did not recall this. The appellant then and there duly excepted to each and all of the said statements of the court to the jury, which exception was allowed. Thereafter the jury retired and subsequently returned with a verdict of 'guilty as charged.'" Counsel for appellant contends that this statement by the trial judge was a comment upon the evidence and forbidden by our constitution (art. 4, § 16), which reads: "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Referring to this constitutional provision in State v. Walters, 7 Wash. 246 (34 Pac. 938, 1098), we said: "It is not the quantum of any particular comment, but all comment whatever, that is inhibited by the constitution; All remarks and observations as to the facts before the jury are positively prohibited." In State v. Wroth, 15 Wash. 621 (47 Pac. 106), we held that the action of the trial judge in leaving the bench and entering the jury room, at the request of that body while in consultation, was such misconduct as to warrant a reversal, regardless of whether any communication actually occurred between the judge and the jury. The objection in both cases is that the constitution is subverted and the defendant's rights invaded. Under such circumstances, the law, from considerations of public policy, will not stop to consider what the effect of such invasion may be in a particular case. The practice is not to be tolerated. can make no difference that the testimony as given by Concannon on the stand was correctly stated to the jurv by the It Nov. 1898.] Opinion of the Court- GORDON, J. judge. As well might it be claimed that in a case where the evidence clearly called for a conviction the judge might sua sponte discharge the jury, and proceed to a judgment of conviction. The vice consists in doing what the constitution forbids to be done, and, in dealing with error of this character, courts will not consider the probable consequences of the error. The way to effectively prevent repetition is to put the seal of condemnation upon the practice, and such is the course uniformly pursued by the courts. State v. Wroth, supra, and authorities cited. We are not unmindful of the fact that in many jurisdictions it is permissible for the court to state, at the request of the jury, what a witness has testified, and also to sum up the evidence. It suffices to say that such practice is abhorrent to our constitution. It was for the jury alone to determine what the witness had testified, and when the judge told them that his notes showed the testimony to have been of a certain character, stating it, he assumed a function which the constitution expressly reserved to the jury, and the defendant's objection should have been sustained. For this error the judgment must be reversed, and the cause remanded for a new trial. SCOTT, C. J., and DUNBAR, ANDERS and REAVIS, JJ., concur. Opinion of the Court-SCOTT, C. J. [20 Wash. [No. 2964. Decided November 26, 1898.] ISLAND COUNTY, Appellant, v. J. M. BABCOCK et al., Respondents. EVIDENCE-ADMISSIBILITY OF WRITTEN INTERROGATORIES-EXAMINATION OF WITNESS-IRRESPONSIVE ANSWER. Under Code Proc., §§ 1660-1665 (Bal. Code, §§ 6008-6013), authorizing the admission in evidence of written interrogatories and the answers thereto, without any restriction being imposed, they are admissible although the party interrogated may be present as a witness at the trial. Where a defendant on the witness stand, who had signed the name of another defendant to a written instrument in issue, was asked whether he had advised such other defendant of his act, and answered: "No; he certainly knew it; he did not need to be advised," it was error to strike the answer without a showing by further examination that the testimony was incompetent, since it was prima facie legitimate and competent to show authorization or ratification of the act. (DUNBAR, J., dissents.) Appeal from Superior Court, King County.-Hon. E. D. BENSON, Judge. Reversed. Lester Still, Prosecuting Attorney, and Charles F. Repath, for appellant. E. C. Million, and Charles E. Patterson, for respond ents. The opinion of the court was delivered by SCOTT, C. J.-This case was before this court on a former occasion (17 Wash. 438, 50 Pac. 54), and the plaintiff has again appealed from the judgment rendered against it upon the retrial. The first error alleged is excluding from evidence, on defendants' objection, the written interrogatories propounded by the plaintiff to the defendant Cranney, and his answers thereto. The respondents contend that these |