1. The prosecutor was a Chinaman, who had been in this country about three years, spoke the English language imperfectly, and was not easily understood, except by those familiar with him. When offered as a witness by the state, *493he was objected to, and it was insisted that a peculiar form of oath should be administered to him; that his competency could not be shown by his own examination not under oath, but had to be established aliunde. The court, however, tested his capacity by causing him to be questioned; the result of which was, that he believed in God, and in the Bible, and showed a consciousness of the penalties incurred for false swearing, both in this world and the next. After this appeared, he was sworn in the usual form on the Evangelists, and admitted to testify. This was in strict accordance with legal requirements. Code, §§3852, 3853, 3856, 3859, 3860.
2. Objection was taken to the course of remark indulged in by the solicitor general, and the court was asked to intervene and check it. The judge complied in part with this request, but a portion of the remarks he thought legitimate as a reply to topics discussed by defendant’s counsel. From aught that appears in the record, we cannot say there was any error, or even the least impropriety in this. The enforcement of order and proper decorum are matters which must necessarily be left, in a very large measure, to the discretion of the judge, and it is hardly proper in any instance, except where flagrant injustice is made manifest by the course of the court,, to assign error thereon.
3. It would have been manifestly wrong to have charged the jury, as requested by defendant’s counsel, that, if they found from the evidence, that defendant was found shortly after the crime locked up in a room, in bed, covered up, in a lodging-house; that defendant had hired the room, and paid for it, having been directed there when in. search of a lodging; that no inference or conclusion as to his guilt can be drawn from such evidence. Any person has a right to hire a rbom in a lodging-house, and lock the door thereof, and lie in the bed therein, covered or not, as he may see fit.” This request contained but a partial summing up of the circumstances detailed in the evidence; it *494alluded only to such as were deemed favorable to the defendant, while all allusion to others which had a tendency to inculpate him seems to have been carefully excluded. The evidence is for the jury, and it is not for the judge to draw inferences and conclusions from it for them. Had he undertaken to do so, he would have invaded their peculiar province, and assumed a prerogative that did not ¡belong to his office.
4. The portion of the charge excepted to as to the con- ■ elusive nature and tendency of circumstantial evidence to fix guilt, when taken in connection with the context, is ■undoubtedly correct. Indeed, it is not only clear and explicit, but it is liberal to the defendant, and presents ably •every phase and theory of the case; in these respects it is -a model.
5. It is satisfactorily shown that the prisoner suffered no •detriment from the separation of the foreman of the jury from his fellows and in his conversing with the sheriff. He was never out of sight of the bailiff who had charge of the .jury; and when he approached the sheriff and made known his want, that officer promptly ordered him back to his room, and referred him to the court for answer to his questions. This irregularity was too slight to warrant an interference with the verdict. The conduct of the sheriff was eminently proper.
6. The court did not err in informing the jury that, while it was in their power to recommend the defendant to mercy, the judge was not bound by such a recommendation, ■ and it was entirely discretionary with him whether he regarded it m fixing the punishment. This was all done in response to a question by the body in open court, and in the presence of the prisoner. We cannot perceive that it had a tendency to force a verdict from the jury who had been more than five hours deliberating upon the case.
7. The question that has given us most trouble, is the sufficiency of the proof to connect the prisoner with the offence. Had we been on the jury, we might have reached *495a different conclusion, but it is not our province to put ourselves in their position. They were satisfied beyond a reasonable doubt of the defendant’s guilt, and the judge who presided at the trial was content to let the finding stand; he had a discretion in this respect which is not confided to us, and we cannot say that he has abused it. The facts in proof render the guilt of the accused highly probable, and perhaps his failure to explain such of them as raised a strong presumption against him, and which, upon the supposition of his innocence, might easily have been explained, serve to render conclusive what might otherwise have appeared indifferent and inconclusive.' At all events, the rule which forbids our interference in such cases, has been too long and too firmly established by our decision's, to be overturned or materially changed.
Judgment affirmed.