Concurring in the conclusions herein announced by Mr. Justice Cothran, it is considered that the statement by the Circuit Judge in the charge to the jury to the effect that the defendant's plea of alibi might properly be characterized as "the rogue's defense" constituted such a comment upon the evidence in this case as to render the charge violative of the constitutional inhibition which declares that "judges shall not charge juries in respect to matters of fact." Constitution, Art. 5, § 26.
While the Constitution of 1868 contained a similar limitation upon the power of Circuit Judges, it nevertheless granted permission to "state the testimony" in the charge to the jury. Constitution 1868, Art. 4, § 26.
During the period in which this constitutional provision was in force it was held that fair comment upon the testimony was permissible in the charge, provided it did not involve an expression or suggestion of the Judge's own opinion upon the facts. See the cases collated in Norris v.Clinkscales, 47 S.C. 516, 25 S.E. 797. It was upon this reasoning, based upon the constitutional grant of power to "state the testimony," that decisions like that of State v.Summers, 19 S.C. 90, cited by the Chief Justice in the case now at bar, were in terms predicated.
But the framers of the Constitution of 1895, now of force, in again declaring by that instrument that "Judges shall not charge juries with respect to matters of fact," intentionally omitted the previously existing permission to "state the testimony." From this highly significant omission there follows the reasonable conclusion that, since the Constitution of 1895 inhibits without qualification any charge by a Judge to a jury "with respect to matters of fact," there is included in this prohibition all comment whatsoever having any reference to the weight which should be given by the jury to any testimony in the case. SeeState v. Johnson, 85 S.C. 270, 67 S.E. 453; State v.Smalls, 98 S.C. 297, 82 S.E. 421; Norris v. Clinkscales *Page 122 47 S.C. 517, 25 S.E. 797, and the cases there cited. Upon this reasoning since the adoption of the Constitution of 1895, it has been held error to charge a jury that "it is unsafe to convict upon the uncorroborated testimony of an accomplice;" and this was so held under the present Constitution, notwithstanding the fact that such a charge was generally upheld as permissible under the Constitution of 1868. See State v. Sowell, 85 S.C. 278, 67 S.E. 316, and cases there cited.
Where a jury is instructed that the plea of alibi is said to be "the rogue's defense," it is manifest that such a suggestion coming from the lips of the presiding Judge, is tantamount to a judicial comment to the effect that the evidence in support of such a plea should be received with great caution. Such a charge, therefore, involving as it does a strong intimation that this defense should be viewed with suspicion, unquestionably constitutes an instruction with reference to the weight to be given to evidence adduced in support of an alibi, and is consequently a manifest invasion of the province of the jury, upon whom alone, unaided and uninfluenced by any suggestion from the presiding Judge, there is devolved, by the express provision of the Constitution, the exclusive function of determining the weight to be given to any evidence in the case. State v. Johnson, supra.
For these reasons, the Circuit judgment must be reversed, and a new trial ordered.