character, and it is then for you to say whether or not he is entitled to belief. A great deal that I have said in reference to those two witnesses can be said as to any other witnesses without repeating it.” To which charge of the court defendant, at the proper time, excepted.
After repeated perusals, and a very careful consideration of the charge as a whole, we are unanimously of the opinion, and shall so hold, that the language embraced within the fifteenth exception above quoted was an invasion of the substantial legal rights of the defendant, and, as such, reversible error. It is quite clear to us that the statement in general terms, which was reiterated in the charge, to the effect that the jury were the exclusive judges of the facts, and of the credibility of witnesses, did not operate to obliterate the impression conveyed to the jury by the strong and unmistakable language employed by the trial court, when speaking particularly of the testimony of the witness Brown as contrasted with that of the witness Dinan. The language now under review was, we do not doubt, intended by the learned judge who used it to be fair and impartial, but, in our opinion, the effect of such language was quite the reverse of fair and impartial. As we construe the words in question, they constitute an argumentative and persistent attack from the bench upon the credibility of defendant’s principal witness, Brown. If Brown’s testimony was true, the defendant was innocent of the charge. While in prison under sentence of death for a murder committed in the state of Minnesota, Brown volunteered to give his deposition in defendant’s behalf; and it was taken by a commissioner appointed by the trial court, and read to the jury. Under such solemn circumstances, Brown testified in substance and in detail, that he was present at the killing of Casey; that he (Brown) shot and killed Casey, and, further, that be did not see the defendant there when the homicide occurred. In that portion of the charge in question the trial court pointedly calls attention to, and exhaustively considers, the question of the credibility of the witness Dinan, who swore that he saw the accused shoot Casey, and the testimony of the witness Brown, who testified that he alone killed the deceased. The life of the defendant
