■ [Defendant and Henry Bailey were indicted for burglary.
Defendant was tried separately^ and was convicted. He moved for a new trial, on the following among other grounds:
(1.) Because the verdict was contrary to law 'and evidence. ■ “ “■ ’ •
(2.) Because the, court permitted the wife of Henry Bailey to testify as a witness for the state, Bailey and defendant béing- jointly-indicted, but defendant being tried separately.
(3.) Because the court charged as follow's : “ In the next place, inquire whether the defendant is the guilty párty or not. Did he break and enter the house, as alleged ? Was the defendant in the vicinity where the crime, if any, was’committed? Have the possession añd-'condi,fioü of the socks been satisfactorily explained by defendant?” ,
(The court also charged that he neither expressed nor in-< *820timated any opinion on the evidence or the sufficiency of it to convict, and that he did not mean to confipc (hem (o his summing-up, but they should consider all the evidence in the case.)
(4.) Because the court charged that the jury should convict the defendant, even if they believed the prosecution was carried on in bad faith, provided the evidence satisfied them of his guilt, without instructing them that a malicious prosecution should be considered by them in judging of the credibility of the state’s witnesses. (The court charged that, in judging of the credibility of witnesses, the jury should consider their interest in the case, their prejudices and the motives under which they testify.)
The motion was overruled, and defendant excepted.]