Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1900-02-14
THE FISHER CASE.
Text Of the Opinion Of the Supreme Court
Handed Down Last Week.

Hdnueu uOWn Last week.
The case is reversed on account OF
the errors of the lowercourt in charg-
ing the jury that the accused was
guilty of murder in the first degree
or nothing; in subsequently giving
the jury oral instructions, when the
code says they must be In writing;
also in urging the jury to agree be-
cause OF the expense the trial had in
CURED upon the county.
In the course OF its opinion the
court said:
I'm the oral instructions and by
the judge the court committed error prejudicial
to the defendant. The more serious error lies
in the intimation that the Judge believed the
defendant guilty. II he believed that the evil
dence was not of sufficient weight to sustain a
verdict, the manifest duty of the court was TO
advise an acquittal; in other words, if the Judge
was of the opinion that defendant. II convicted,
should be granted a new trial because of the
insufficiency of the evidence, the jury should
have been advised to return a verdict of not
guilty. II, in the opinion of the Judge, the
evidence was sufficient to warrant the submits
sion of the case to the jury. the weight of the
evidence was not for him to determine. II
seems clear also that by the impromptu oral
charge and the jury were given to
understand that the Judge entertained no doubt
of the verdict which ought to be rendered, and
the trend of his remarks was certainly ~calculat-
ed to impress the jury that. in his opinion, the
verdict should be one of guilty. His opinion
upon the weight of the evidence and the guilt
of the defendant was not expressed in direct
language, but it was implied. We think the
correct rule is announced in People vs.. Kindel-
berger. 100 Cal. 1858. "a Pac. Rep. $50; When
upon the trial of a defendant the evidence Is
clearly insufficient to justify a verdict of guilty
1t is the duty of the Judge to so inform the jury
and to advance a verdict of acquittal.' This
power is sometimes exercised by courts and is
one SO frequently invoked in the trial of GRIM
inal cases that its existence may be regarded as
a matter of common knowledge upon the part
of jurors of ordinary intelligence and expert
ence; and this fact is not to be lost sight of in
considering the impression likely to have been
made upon the jury by the charge of the Judge
In this case. To any one knowing that it is the
duty of the court to advise an acquittal If the
evidence is such that. in the opinion of the
Judge. twelve honest men would have no right
to convict him, the remarks of the Judge in this
case could not fail to create the impression
that he thought the jury ought to convict upon
the evidence before them. Blu. ii Is not neces.
sary that we should be able to say that the jury
must have SO understood the charge. Unless
it appears that 1t could not have been so under.
stood. we cannot say that the charge was with
out prejudice to the defendant. The court had
no right. except when advising an acquittal, to
give any expression Of Its opinion as TO the
weight of evidence, or to tell the jury that the
evidence is SO clear that they, as honest men
ought not to disagree. which Is in effect the
same as telling them that there is no conflict In
the evidence and that. as honest men, they car
render but one verdict"