tion. leaf on Evidence, this court said: "It is not every statement of the law found in a text-book or opinion of a judge, however well and accurately put, which can properly be embodied in an instruc. The instruction under consideration does not contain a single proposition of law, but only declarations of supposed facts, which common experience has perhaps established as true. The teachings of experience on questions of fact are not, however, doctrines of law, which may be announced as such from the They may well enter into the arguments of but the jury, not the judge, is the arbitrator The most that the judge may do, bench. attorneys, of such contentions. under our practice, which leaves questions of fact entirely to the jury, is to direct the attention of the jurors to such propositions and leave them, in the light of their experience, to say what credit should be given to any testimony on account of its alleged doubtful character." In the case of Woolen v. Whitacre, 91 Ind. 502, it was said, by Hammond, J.: "The decisions of this court are numerous to the effect that it is error for the court to say or intimate to the jury that any circumstance or fact should be considered by them to the disparagement of a witness's testimony." And the rule above indicated in Finch v. Bergins, 89 Ind. 360, is supported by Nelson v. Vorce, 55 Ind. 455; Pratt v. State, 56 Ind. 179; Millner v. Eglin, 64 Ind. 197, 31 Am. Rep. 121; Jackman v. State, 71 Ind. 149; Works v. Stevens, 76 Ind. 181. § 136. Prominent Features of the Charge. In charging the jury it should be the aim of the court not to give undue prominence to any phase of fact which the testimony tends to establish. If there be apparent incompleteness or weakness of proof on any of the controverted issues in the cause, counsel will usually dwell on this in argument. But when parties ask a charge which isolates certain enumerated facts and circumstances, real or supposed, and invoke the instruction of the court on these, as circumstances especially to be weighed in the cause, the usual return is to give such facts and circumstances great, if not undue, prominence before the jury; and if given, the charge should be circumstances which point to the opposite conclusion. Less than this is apt to leave on the minds of the jury an impression that the convictions of the presiding judge incline in favor of the party such instructions are supposed to benefit; and the sup posed bias is none the less patent and apparent, even though, in giving such charge the court adds: "These circumstances are to be considered with the other evidence in the case." Durrett v. State, 62 Ala. 441; and see Castro v. Illies, 22 Tex. 503, 73 Am. Dec. 277; McCartney v. McMullen, 38 Ill. 240; Blankenship v. Douglas, 26 Tex. 230; State v. Homes, 17 Mo. 379, 57 Am. Dec. 269; Carroll v. Paul, 16 Mo. 241; State v. Ward, 19 Nev. 297. In charging the jury the court must state to them all matters of law which it thinks necessary for their information in giving their verdict; and must, if requested, in addition to what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact. People v. O'Neill, 112 N. Y. 363; People v. McInerny, 5 N. Y. Crim. Rep. 47; People v. Carpenter, 4 N. Y. Crim. Rep. 39. Comments upon the testimony so long as the judge leaves all the question of fact to the jury and instructs them that they are the sole judges of matters of fact are not subjects of legal exception. It is desirable that the court should refrain as far as possible from saying anything to the jury which may influence them either way, in passing upon controverted questions of fact, and perhaps comments on the evidence might be carried so far as to afford ground for assigning error. Sindram v. People, 88 N. Y. 196. So it is said that the court is the judge of the law, and the jury of the fact; that is, it is the duty of the jury "to be governed by the instructions of the court as to all legal questions involved in such general verdicts. They have the power to do otherwise, but the exercise of such power cannot be regarded as rightful, although the law has provided no means, in criminal cases, of reviewing their decisions, whether of law or fact." Duffy v. People, 26 N. Y. 588. The general question is very elaborately and exhaustively considered in Pierce v. State, 13 N. H. 536, and here also the conclusion is reached that although the jury in criminal cases have the power to disregard the charge of the court, it is, nevertheless, their duty to receive it as the law of the case. Habersham v. State, 56 Ga. 61, note. 137. The Formula Usually Adopted.-The formula usually adopted by the trial court in charging the jury is, "if from the evidence the jury believe, etc.," and there is no merit in the contention that such a formula should be qualified by the addition of the words "to a moral certainty" or of some equivalent language. If counsel for the defendant desired greater particularity, it is within his province to ask the court to explain what is meant by the term "belief," or rather that what we term belief in a criminal case, when applied to the guilt of a defendant, is a conviction of the mind to a moral certainty and beyond a reasonable doubt. People v. Sheldon, 68 Cal. 434. See also Cox v. People, 109 Ill. 457. Judges may state the testimony and declare the law, but must not express an opinion upon the weight of the evidence. We are unable to see how the mere statement that there is a conflict in the evidence in certain respects can be regarded as the expression of an opinion upon the weight of the evidence, or a charge with respect to matters of fact. In People v. Casey, 65 Cal. 261, the court instructed the jury that "the testimony in the case shows that the defendant's," etc. This was held to be erroneous and the court said: "To state the testimony is one thing. To declare what it shows is another and very different thing. It is for the jury exclusively to determine what the testimony shows." People v. Flynn, 73 Cal. 511. In State v. Parker, 61 N. C. 475, Pearson, Ch. J., said that all that the law requires is, that the jury shall be clearly instructed that unless, after due consideration of all the evidence, they are "fully satisfied," or "entirely convinced," or "satisfied beyond a reasonable doubt," of the guilt of the prisoner, it is their duty to acquit, and every attempt on the part of the court to lay down a "formula," for the instruction of the jury by which to "gauge" the degrees of conviction has resulted in no good. State v. Sears, 61 N. C. 146; State v. Knox, 61 N. C. 312; State v. Gee, 92 N. C. 756. In cases of homicide it is reversible error to charge that the fact of the killing being admitted by the accused, the burden of proof is on him to show that it is not murder. The frequency with which this statement creeps in to the judge's charge, admonishes us to specific mention of this error in this immediate connection. Wilson v. People, 4 Park. Crim. Rep. 619; People v. McCann, 16 N. Y. 66, 69 Am. Dec. 642; Com. v. Hawkins, 3 Gray, 463; People v. Robinson, 2 Park. Crim. Rep. 235; 1 Hale, P. C. 425; Penn v. 4 Bl. Com. 198; 3 Coke, Inst. 47; 1 East, P. C. 215; The Oregon law provides that the jury are to be instructed by the court on all proper occasions: (1) That their power of judging of the effect of evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence; (2) That they are not bound to find in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption or other evidence satisfying their minds; (3) That a witness false in one part of his testimony is to be distrusted in others; (4) That the testimony of an accomplice ought to be viewed with distrust, and the oral admissions of a party with caution; (5) That in civil cases the affirmative of the issue shall be proved, and when the evidence is contradictory, the finding shall be according to the preponderance of evidence; that in criminal cases guilt shall be established beyond reasonable doubt; (6) That evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and therefore, (7) That if the weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust. Hill's Annotated Law of Oregon, § 845. § 138. Mistake how Rectified.--When upon a criminal trial the judge in charging the jury lays down erroneous propositions, but, upon his attention being called thereto by objections, corrects the misdirections and lays down the correct rule, no error is presented for review. But to obviate an erroneous instruction upon a material point the withdrawal must be absolute and in such explicit terms as to preclude the inference that the jury might have been influenced thereby. Greenfield v. People, 85 N. Y. 75, 39 Am. Rep. 636; Eggler v. People, 56 N. Y. 642; Chapman v. Erie R. Co. 55 N. Y. 579. § 139. Instances of Fatal Error.-In the case of Castleman v. Sherry, 42 Tex. 59, the court said: "The charge is further objectionable as being upon the weight of the evidence, when the court tells the jury that evidence of the admissions of a party is regarded as dangerous and liable to abuse, etc. Such expressions as these, found in every treatise on evidence, are to be regarded as matters of argument rather than rules of evidence having the force of law, upon which the court should instruct a jury." See also Mauro v. Platt, 62 Ill. 450. It is fatal error to instruct the jury that evidence of verbal admissions made some time ago are subject to imperfection and mistake, and should be cautiously received, because the party may not have expressed his own meaning, or may have been misunderstood, and the witness may not give the exact language, and thereby change the meaning; but admissions deliberately made against interest, are well understood, are entitled to consideration; nevertheless the jury are the exclusive judges of the weight of the evidence. Shorb v. Kinzie, 100 Ind. 429. A charge which instructs the jury that, if the evidence is susceptible of two reasonable constructions, one of which is consistent with the defendant's innocence, it is their duty to adopt that construction, is calculated to confuse and mislead, and is properly refused. Gibson v. State, 91 Ala. 64. In Densmore v. State, 67 Ind. 308, the court charged the jury that "what is commonly called common sense is perhaps the jurors' best guide in those particulars." This was held erroneous, the court saying: "Now, while common sense is a very desirable |