By the Court,
Harris, J. —The question which the learned judge who presided at the trial was presenting to the jury at the time he used the language upon which the counsel for the defendant relies to sustain his allegation of error, was whether the defendant, if guilty at all, was guilty of murder or manslaughter. If, in submitting that question for the decision of the jury, he had taken occasion to express his own opinion, as to the effect of the evidence, leaving them to decide the question, notwithstanding such expression, it would not have fur*343nished a valid ground of exception. Upon a motion for a new trial upon a case it might be otherwise, but such an expression of opinion does not of itself constitute error. It becomes important, therefore, to determine whether the language which is the subject of this exception amounted to an instruction, as to the law applicable to the evidence in the case, or was a mere declaration of the opinion of the judge upon the evidence. .On behalf of the defendant it had been insisted that the'evidence warranted the jury in convicting him of manslaughter only, while, on the other hand, the counsel for the prosecution had insisted that the evidence required a conviction for murder. In respect to these opposing “theories,” the learned judge, having very properly submitted it to the jury to determine whether the evidence as detailed by the witnesses for the prosecution was to be credited, proceeded to say that, if they should believe that evidence, he could see no ground left which would warrant them in finding the defendant guilty of manslaughter, but, on the other hand, the circumstances of the case, if believed, established a case of murder. It may not have been intended that the jury should understand that they had no right to convict the defendant of manslaughter. But I think the language may well be so construed. Indeed, I think it most likely that the jury understand from the charge that, if they would decide according to the law applicable to the case, they must either convict the defendant of murder or wholly acquit him. The language is emphatic and unqualified: “ Under the circumstances as given you by the witnesses for the prosecution, I see no ground to warrant you in finding the defendant guilty of manslaughter.” Upon such a charge, the. jury may well have supposed that a verdict of manslaughter would have been in violation of law. If the charge was such that it might be so understood, I think it was erroneous. The evidence on the part of the prosecution was such as would, undoubtedly, have warranted a conviction for murder. The jury might well have' come to the conclusion that the fatal blow was given with a premeditated design to effect death. On the other hand, I am not pi'epared to say .hat the jury might not have been, war*344ranted in finding that the act was committed in the heat of passion. If so, the jury, instead of being told that there was no ground upon which they would be warranted in convicting of manslaughter, should have been instructed as to the distinction between murder and manslaughter, and left to convict the defendant of the one crime or the other, as they should find, from the evidence, that the act was committed with a premeditated design to eifect the death of Gleason, or in the heat of passion.
Regarding that portion.of the charge which has been inserted in the bill of exceptions rather as an instruction upon the law applicable to the facts proved, than an opinion advisory as to the eifect of the evidence, I am inclined to think the charge had the eifect, not intended perhaps, to mislead the jmy, by inducing them to dismiss from their minds the consideration of the question whether their verdict should be murder or manslaughter. For this reason, I am of opinion that the judgment should be reversed and a new trial ordered.
Judgment reversed.