DISSENTING OPINION.
Barclay, J.— It appears to me that the first instruction for the state (accurately quoted in the foregoing opinion) is a departure from our law which invests the jury with the power to determine the weight and sufficiency of testimony and expressly forbids the court, in any criminal case, to “comment upon the evidence or charge the jury as to matter of fact, unless requested so to do by the prosecuting attorney and the defendant or his counsel.” R. S. 1879, sec. 1920.
Defendant saved exception to it at the time. No suggestion has been made of any waiver or other act weakening the effect of his objection.
If there was error in giving the instruction a new trial should be granted unless the court is satisfied that it was harmless. It may have been, but what has been said to that effect does not appear convincing to me.
It would probably serve no useful purpose to go further, even did time permit, than to file this mere memorandum of dissent from the conclusion announced by my able and faithful associate.