The opinion of the Court was delivered by
Mr. Justice Pope.The defendant, Wade Atkins, was tried and convicted of assault and battery with intent to kill at the January term, 1897, of the Court of General Sessions for Abbeville County, and after sentence appealed to this Court' on five grounds, viz: 1. Because his Honor erred in charging the jury that defendant had set up an alibi. 2. Because his Honor erred in stating the testimony to the jury. 3. Because his Honor erred in commenting upon the facts of the case when he made the following statements in his charge: “You must consider the statement of Mr. Perrin, who testified that a few minutes before this assault was made, he looked out of the window of his house and saw the defendant walking away from the window; and you will also consider the statement of the step-daughter, who says *483that he was in his house an hour before he was called.” 4. Because his Honor erred in charging upon the facts of the case by stating the testimony and calling the attention of the jury to particular statements made by the witnesses, thus emphasizing certain parts of the testimony and clearly indicating his opinion of the facts testified to by the witnesses. 5. Because his Honor erred in casting the burden of proving an alibi upon the defendant, when the testimony offered by the State tended to make out an alibi for the defendant.
The report of the case must embody the charge of the trial Judge.
1 2 In disposing of the first and fifth grounds of appeal, it is proper to state that the defendant offered no testimony whatever, contenting himself with the plea of not guilty. Notwithstanding this state of facts, the Circuit Judge, in his charge to the jury, stated that the defendant set up the defense of an alibi. This was an error. It follows that it was an error also to cast the burden of proving such alibi upon the defendant. Both of these exceptions are sustained.
3 We will next consider the second, third, and fourth exceptions. The error of the Circuit Judge is so patent and pointed that no words on our part are necessary to make it plain. If the provision of our new Constitution prohibiting judges charging upon the facts permits a Circuit Judge to indulge in such references to the testimony in his charge to the jury as pointed out in these exceptions, it would soon become a pretense. These exceptions are sustained.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the cause remanded to the Circuit Court for a new trial.
Justices Gary and Jones concur in result.