and admirable quality in a man, and exceedingly useful in all the practical affairs of life, including the duties of jurors, we do not see how it can be a better guide to them in the discharge of those duties than the rules of law. Indeed, the rules of law are generally the condensed common sense of ages. But the common sense of twelve jurors would not be likely to be all alike. What one might regard as the common sense view of a question, another might think utterly destitute of common sense. If each juror were to act upon his common sense instead of the rules of law, there would be as many different opinions as there were jurors. With each juror acting upon his own common sense instead of the rules of law, we might expect a verdict in accordance with the law 'when everlasting fate shall yield to fickle chance and chaos judge the strife."" To the same effect, Wright v. State, 69 Ind. 165; Anderson v. State, 41 Wis. 430, 434; Meyers v. Com. 83 Pa. 142; People v. Ah Sing, 51 Cal. 372.

A charge which selects and gives undue prominence to particular portions of the evidence, to the exclusion of other material portions, is properly refused; as, where it asserts that the failure to prove any motive for the crime, or the proof of friendly relations between the defendant and the deceased, "is a strong circumstance in favor of the defendant's innocence." Goley v.

State, 85 Ala. 333.

So it is error to refuse to charge that, if there is apparent conflict in the evidence, it is the duty of the jury to reconcile it if they can, and not impute perjury to any witness. Rickerson v. State, 78 Ga. 15.

It is error for the court to refuse to charge the jury that if the evidence shows that at the time of committing the act the accused was in a state of intoxication, the jury must consider that fact, and that condition as bearing upon the question of premeditation, and showing the absence of deliberation in the act. Haile v. State, 11 Humph. 154; Com. v. Jones, 1 Leigh, 598; Pirtle v. State, 9 Humph. 663; Sivan v. State, 4 Humph. 136; Boswell v. Com. 20 Gratt. 860; Lancaster v. State, 2 Lea, 575; Schlencker v. State, 9 Neb. 241; People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484; People v. Belencia, 21 Cal. 544; Ferrell v. State, 43 Tex. 503; Colbath v. State, 2 Tex. App. 391; Whart. Homicide, § 587; Com. v. Dorsey, 103 Mass. 412; Kelly v. Com. 1 Grant Cas. 484; Keenan v. Com. 44 Pa. 55, 84 Am. Dec. 414; Jones v. Com. 75

Pa. 403; State v. Johnson, 40 Conn. 136; People v. Williams, 43 Cal. 344; Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558; People v. Ferris, 55 Cal. 588; People v. Harris, 29 Cal. 678; People v. Batting, 49 How. Pr. 392; Flanigan v. People, 86 N. Y. 554, 40 Am. Rep. 556.

A general rule of wide acceptance is to the effect that a court should not give a jury such instructions as to prevent them from exercising their own judgment and deciding for themselves. New York F. Ins. Co. v. Walden, 12 Johns. 513; Bulkeley v. Keteltas, 4 Sandf. 450, 6 N. Y. 384; People v. Wiley, 3 Hill, 194; People v. Quin, 1 Park. Crim. Rep. 340; Pfomer v. People, 4 Park. Crim. Rep. 588; Breen v. People, 4 Park. Crim. Rep. 380; Fitzgerrold v. People, 37 N. Y. 413.

In a larceny case an instruction invades the jury's province which charges that if the defendant denied having in his possession goods which had been stolen, and such goods were found in his possession immediately after his denial, and he failed to explain such possession, these facts were sufficient to sustain a conviction. Blankenship v. State, 55 Ark. 244.

§ 140. Instructions Must be Regarded in their Entirety.-Although an instruction, considered by itself, is too general, yet if it is properly limited by others given on the other side, so that it is not probable it could have misled the jury, judgment will not be reversed on account of such instruction. Kendall v. Brown, 86 Ill. 387; Skiles v. Caruthers, 88 Ill. 458.

The supreme court of Iowa has said: "It is usually not practicable, in any one instruction, to present all the limitations and restrictions of which it is susceptible. These very frequently must be presented in other and distinct portions of the charge. The charge must be taken together, and if, when so considered, it fairly presents the law and is not liable to misapprehension nor calculated to mislead, a cause should not be reversed, simply because some one of the instructions may lay down the law without sufficient qualification." Rice v. Des Moines, 40 Iowa, 638.

The same court held in a criminal case, where the indictment was for murder, that "instructions are all to be considered and construed together," and that an omission to state the law fully in one instruction, when the omission is fully supplied in another, does not constitute error. State v. Maloy, 44 Iowa, 104.

The supreme court of California said, in a criminal case:

"While some of the instructions are perhaps subject to criticism and may not state the law with precise accuracy, yet, taken as a whole, they were substantially correct and could not have misled the jury to the prejudice of the defendant." People v. Cleveland, 49 Cal. 577. The principle here announced, that an instruction, which is general in its character, may be limited or qualified by other instructions in the series, does not contravene the rule, that in a criminal case "material error in one instruction calculated to mislead is not cured by a subsequent contradictory instruction." Whart. Crim. Pl. & Pr. (8th ed.) § 793. Notwithstanding this, as was said in the case of McDermott v. State, 89 Ind. 187, "The instruction should not be dissected and separated. It must be considered as a whole. If an instruction may be separated into fractional parts, so that one portion may not limit and qualify, or extend and explain another portion, it will be difficult, if not impossible, to form an instruction that will stand such an examination and criticism. In thus separating into parts, the sense may be twisted and tortured so that the most correct may appear to be the most faulty instruction." See also Nicoles v. Calvert, 96 Ind. 316; Wright v. Fansler, 90 Ind. 492; Story v. State, 99 Ind. 413.

§ 141. Court Cannot Assume any Fact Established when there is Conflict. It is the settled law that where there is any conflict in the evidence as to the existence of any fact in the case, the court can not, in charging the jury, assume that such fact has, or has not been established. This would be an invasion of the province of the jury. This is the ruling in the case of Finch v. Bergins, 89 Ind. 360. But where the existence of a fact is established by the evidence without any conflict, contradiction or dispute whatever, it is not an available error for the court to instruct the jury that there is evidence tending to prove such fact. See the following authorities: Carver v. Carver, 97 Ind. 497; Hazzard v. Citizens State Bank, 72 Ind. 130; Moss v. Witness Printing Co. 64 Ind. 125; Dodge v. Gaylord, 53 Ind. 365; American Ins. Co. of Chicago v. Butler, 70 Ind. 1; Adams v. Kennedy, 90 Ind. 318; Steinmetz v. Wingate, 42 Ind. 574; Hynds v. Hays, 25 Ind. 31; Porter v. Millard, 18 Ind. 502; State Bank v. Hays, 3 Ind. 400; Crookshank v. Kellogg, 8 Blackf. 256; Nixon v. Brown, 4 Blackf. 157; Governor v. Shelby, 2 Blackf. 26; Hughes v. Monty, 24 Iowa, 499; Miller v. Kirby, 74 Ill. 242; Heartt v. Rhodes, 66 Ill. 351; Hanrahan v. People, 91 Ill. 142.

Judge Thompson, in his work on "Charging the Jury," at page 74, says: "But whilst it is improper for the judge to assume the existence of a fact in issue, yet, where the evidence is clear and conclusive as to the existence of the particular fact, and there is no evidence to the contrary, an instruction, assuming it as true, will not work a reversal of the judgment." This is a very good summary of the doctrine of the cases above cited. Koerner v. State, 98 Ind. 7.

In the case of Sindram v. People, 88 N. Y. 196, Judge Rapallo said: "Comments upon the testimony, so long as the judge leaves all the questions of fact to the jury, and instructs them that the sole judges of matters of fact, are not the subjects of legal exception. It is desirable that the court should refrain, as far as possible, from saying anything to the jury which may influence them either way in passing upon controverted questions of fact, and perhaps comments on the evidence might be carried so far as to afford ground for assigning error. But in the present case, whenever its attention was called by the prisoner's counsel to any part of the charge which he considered as an infringement upon the province of the jury, the court promptly aud clearly withdrew the remarks objected to, and emphatically reminded the jury that they alone had the right to determine the facts.”

§ 142. Instructions are Advisory in their Nature. The jury being the judges of the law and the facts in criminal cases, the instructions of the court are merely advisory, and not obligatory. Nuzum v. State, 88 Ind. 599; McDonald v. State, 63 Ind. 544; Keiser v. State, 83 Ind. 234; Fowler v. State, 85 Ind. 538.

In the case of State v. Banks, 48 Ind. 197, the court instructed the jury, under the facts, to return a verdict of not guilty. It is said by the supreme court, in affirmance of that case, that, "A court, in charging a jury, has no right to assume the guilt of the accused, or that a fact has or has not been proved, or to express any opinion or manifest a leaning upon evidence which would be submitted to the jury; but when there is no evidence, or none upon a particular point, upon which a conviction could be based, the court has a right to say so, and direct the jury to find the defendant not guilty."

On a trial for murder, where the evidence against the defendant is circumstantial, the jury should be advised that casual state

ments made by the defendant, in the course of ordinary conversation, concerning the death of the deceased, should be considered with great caution. State v. Moxley, 102 Mo. 374.

So where the evidence not only contained no suggestion of any provocation, or other mitigating circumstances, or that the killing was accidental, but affirmatively negatived any such hypothesis, it is not error for the court to advise the jury that no degree of manslaughter, and no degree of murder, except murder in the first degree, was applicable to the case; that, if they were satisfied beyond a reasonable doubt that the defendant killed the deceased with a premeditated design to effect his death, they must find him guilty of murder in the first degree; but that, if they were not so satisfied beyond a reasonable doubt, they must acquit him. State v. Lentz, 45 Minn. 177.

§ 143. Parties may Submit Requests to Charge.—If evidence has been received as proper for one purpose, although not for another-for instance, evidence of another offense, received to show knowledge or intent-the party affected has a right to an instruction, that the jury must consider it only as bearing on the question in reference to which it was properly received. Abbott, Trial Brief, § 791, citing Therasson v. People, 82 N. Y. 238; People v. Gray, 66 Cal. 271; Jones v. State, 14 Tex. App. 85; Holmes v. State, 20 Tex. App. 509; Coleman v. People, 55 N. Y. 81; Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218.

When the instructions of the court are unexceptionable as to the offense charged and for which the prisoner is on trial, and such instructions cover every element of the crime, and correct rules for the proper application of the evidence, it is not strictly the right of a prisoner to ask instructions upon a hypothetical case, based upon other facts. Slatterly v. People, 58 N. Y. 354.

Where the jury have been properly instructed, the judge may refuse to entertain any further application to charge them (Moody v. Osgood, 54 N. Y. 488) and he is under no obligation to submit abstract propositions of law for their consideration.

"The refusal to charge the requests, in respect to the credibility of the two detectives, or informers, was not error, for the reason that one of the requests was to charge that they were accomplices, and the other assumed that they were such." The testimony of such witnesses should be viewed with caution,-and even distrust; but it is, after all, a question for the jury, whether they shall be believed. Com. v. Downing, 4 Gray, 29.