cally in conflict, and in so doing disparages the credibility of such witness for the defense, and also conveys to the jury in plain, though indirect, terms, that the court entertains strong suspicions of the credibility of such witness for the defense, held, error which must reverse the judgment. Held, further, that such error is not cured by repeated statements in the charge that the jury are the exclusive judges of the weight of evidence, and the credibility of witnesses. Subdivision 6, § 343, Code Crim. Proc. which declares that, in charging the jury in criminal trials, the judge “may state the testimony, * * * but must not charge the jury in respect to matters of fact,” has, as to criminal trials, abrogated the common-law rule, under which judges were permitted to give juries their own views and opinions upon the weight of the evidence and the credibility of the witnesses.
(Opinion Filed April 1, 1890.)
ERROR to district court, Traill county; Hon. William B. McConnell, Judge.
Taylor Crum, for the plaintiff in error, argued: Twelve names must be drawn by the clerk, and defendant allowed to examine the twelve before exercising the right of peremptory challenge; citing People v. Scoggins, 37 Cal. 676; People v. Iams, 57 Cal. 115; Lamb v. State, 36 Wis. 424. A writing known to be in the handwriting of a party may be introduced for the purpose of comparison. Georgia, etc., Co. v. Gibson, 52 Georgia, 640; Chance v. Ry. Co., 32 Ind. 472; Macomber v. Scott, 10 Kan. 336; Page v. Homans, 14 Me. 478; Sweetser v. Lowell, 33 Me. 446; Vinton v. Peck, 14 Mich. 295; Yates v. Yates, 76 N. C. 143; Murphy v. Hagerman, Wright, 298, (Ohio); McCorkle v. Binns, 5 Binn. 340, (Pa.); State v. Hopkins, 50 Vt. 316; Bird v. Miller, 1 McMull. 120, (S. C.) The courts are divided on this proposition. Unless defendant puts his character in issue, the state cannot inquire into his history, nor attack his character. State v. LePage, 24 Am. Rep. 75; People v. Daniels, 11 Pac. Rep. 655; Coleman v. People, 55 N. Y. 89; Gale v. People, 26 Mich. 159; State v. Huff, 11 Nev. 26; State v. Lurch, 6 Pac. Rep. 410; State v. Porter, 75 Mo. 171; State v. Carson, 66 Me. 116; State v. Rainsburger, 31 N. W. 866; Philadelphia, etc., Ry. Co. v. Stimson, 14 Peters, 448.
As to the fifteenth exception to the charge, stated in the opinion, counsel cited: Thorp v. Goewey, 85 Ill. 612; Evans v.
