in looking into the record in t'his case two, errors appear to have been committed on the trial, for one-of which, at any rate, the prisoner is entitled to a venire de novo.-
On the trial a question arose as to the withdrawal of certain confessions • of the prisoner. The Court declined withdrawing them, but remarked to the Solicitor for the State, that, after the other evidence already given in the cause, he,'the Solicitor, might withdraw them if he chose to do so, which the Solicitor declined. This seems to us to be an expression of opinion, on- the part of the *47Judge, that the case was sufficiently proved without the aid of the confessions. This is not directly asserted, but is a matter o'f inference plainly from the manner in which the expedient of withdrawing the testimony is suggested. “ After the other evidence, already given in the cause,- the Solicitor might withdraw/’ &c. The sense which we attribute to this language is that which His Honor himself seems to have ascribed to it; for he tabes pains to explain, to the jury, that they were not hound by any opinion or judgment of bis as to the facts. He endeavored to obviate, the effect of his opinion by announcing, in.distinct terms, the jury’s independency of him in all matters of fact pertaining to the issue ; but this it was not practible for bina to do. The opinion had been expressed, and was incapa*-ble of,being recalled.
The statute declares that "no Judge in delivering- a chárgo to the petit jury, shall give an opinion whether a fact is fully or sufficiently psoved, such matters being the true office and province of a jury.”
The object is not |o inform the jury of their province, bu», to guard,them against any invasion of it...
The division ofour Courts ol record into two departments. the-one. for the judging of the law, the other, for judging <>f the facts, mu mailer lying on the surface of our judicatuu-*, and is known-to everybody. It was not inroinuufui ou ¡bis subject the Legislature i.atended to furnish ; ’ hut their purpose was to lay down an inflexible rule of practice — that the judge of the-law should not undertake to decide the facts. If he can not • do so directly, he can not indirectly ; if not explicitly, he cannot by in-uendo. What -we take to he the inadvertence of the Judge, therefore, was not. cured of its illicit character by the- information which he immediately conveyed. *48Knowledge on the part of the jury of their proper.province, is not the criterion for determining the propriety or impropriety of an opinion from the Jndge as to the sufficiency of the proofs. *It is the same .whether the jury know their'rights or not.
♦ The provision of the law in question, has been in existence since 1J#6. On,tfie various occasions when the law has been digested and re-enacted, it has been ocntinued ia. the same words ; and the interpretation which we now give it, is that which has been given it from the beginning. The' •Judge can not properly express an opinion whether a fact pertinent to the issue, is sufficiently or insufficiently proved. Many questions of fact, especially inquiries into mental capacity, and frauds, require as much experience, science, and aecumcn, as the ahstruser questions of law ; and yet their decision is left by law in the hands of the comparatively inexperienced and unlearned. This, we suppose, has been to maintain undisturbed and inviolate,‘that popular arbiter of rights, the trial by' jury, which was, without .some such provision, constantly in danger, from the will of the Judge acting upon men mostly passive in their natures, and disposed to shift off responsibility ; and. in danger, also, from tbe ever-active principle, that" power is always stealing from the many to the few. We imputo no intentional wrong to the Judge who tried this case beldw. The error is one of those casualties, which may happen to the most circumspect in the progress oí a ¿rial'on the circuit. When once.committed however, it was irrevocable, and the prisoner was entitled to havé his case tried by another jury.
.The second error appearing upon the record is the instruction given to the jury in relation to. the 'confessions-of the prisoner.
*49The question made before the Court was, whether the nonfessions had not been made under such influences aa to render, them inadmissible. ■ The two witnesses, who-had been examined before the Judge upon that point, were Kerr and Edson. The Court instructed the'jury, that, as they had heard the evidence of these persons, if they believed Kerr had stated the truth of the transaction in regard to the confessions, then they were all .to be received, and such credit -given to them as they might think proper ; but if they thought that Edson’s statement was the true one, and the inducement was held out before the prisoner made.any confession of his own guilt, (if any such was made,) then they should disregard all the evidence of confessions, &c. The error here consists in laying the confessions before the jury in this alternative way. In the first exception just considered, the Judge went over into the 'field of labor belonging to the jury. In this he invites the, jury to come over into his. Neither is lawful. Such a trespass without leave, on the part of juries, though a grave error, is irremediable in the •lass of cases now before us. ■ If invited, it becomes an error in the Judge. He cannot put upon others the decision of a matter, whether of law or fact, which he himself is hound to make. The parties are entitled to his judgment, as a finality , on all questions of fact arising on the trial of a cause, 'upon which depends the admissibility of testimony. It is the duty of the Judge to determine them definitively, and to admit or reject the testimony accordingly. It is error to. leave it to the jury to decide the preliminary question of admissibility, and to instruct them to consider it,, or not to consider it, as they find the question the one way or the other.
*50This matter, was coasidered in the cases of Ratliff vs. Huntley, § Ire., 545, and Monroe vs. Stubbs, 9 Ire., 49, and the law declared to be as herein stated. For this error, the prisoner would be^ entitled to have his case put before another jury, if it -would by any possibility have brought him harm ; but it does not appear to us that it could ; the Judge having previously decided against the prisoner ; and it is not therefore considered of any avg.il to the prisoner in his bill of exceptions.
It is noticed in order to renew our disapprobation of the coui-se. .
For the first error the prisoner is entitled to a venire de novo. • '/
This opinion is to be certified to the Superior Cpurt, to the end that it may take further proceedings according to law.