There are thirty-nine assignments of error; and as many of them are about rulings concerning the admissibility of evidence, we have been compelled to examine carefully the whole transcript, which consists of four large books of manuscript. And, when read, it is found to consist, to a great extent, of lengthy, wearisome, and apparently pointless examinations and cross-examinations of witnesses and other immaterial and worthless matter, utterly useless in pointing the exceptions taken. Under our view of the case, however, there is no need to notice much of this unnecessary matter.

It appears that, on July 28, 1886, J. B. Martin, who was a policeman of the city of San Francisco, arrested one Lee Chuck for the alleged murder of one Yen Yuen, who was on that day shot and killed on a public street of that city. And the charge against the defendant herein, Fong Ching (or Pete), upon which he was convicted, is, that he offered said policeman, Martin, a bribe of four hundred dollars to testify falsely upon the examination of said Lee Chuck for said alleged murder; "that he [Martin] had seen some persons attack said Lee Chuck with pistols, and that he [Lee Chuck] had shot in amongst them." On the trial of the case at bar, Martin testified, in substance, that soon after the arrest of Lee Chuck, the defendant herein (Pete) met him (Martin), and asked him "to be light" on Lee Chuck, and that he (Martin) gave some evasive answer, saying, "I will see," or something like that; that during the next day or two he had several private interviews with the defendant (another policeman, named Love, being present part of the time), at which defendant offered to give various sums of money to Martin if the latter would agree to swear falsely, as above stated; that he (Martin) pretended to listen favorably to defendant's proposals, for the purpose of leading him on, so that he might have sufficient evidence of the crime; that he demanded higher sums of money than defendant would offer;

that he never received or took any money at all from defendant; and that finally defendant offered him four hundred dollars for the proposed false testimony. On the other hand, defendant testified that Martin made the first proposal about money; that defendant never gave or offered to give any money to Martin to induce the latter to swear falsely; that Martin represented that he could be of great service to Lee Chuck; that defendant was a warm friend of Lee Chuck, and feared that a certain strong Chinese society, which was very hostile to Lee Chuck, would use money to induce Martin to testify falsely against him, and that at the solicitation of Martin he (defendant) gave Martin various sums of money, amounting in all to four hundred dollars, for his friendship, and to induce him to testify merely to the truth, and not to testify falsely against Lee Chuck. It is evident that the decision of the case turned mainly upon the amount of credence which the jury should give to either one of these conflicting stories. (It appears incidentally in the transcript that two former juries failed to agree.) Bearing upon this state of the testimony, the court below, of its own motion, gave a certain charge to the jury; and it is contended that the latter part of said charge (given below in Italics) was an unauthorized intrusion into the province of the jury. The charge is as follows:

"The defendant has testified as a witness in his own behalf. On the witness-stand he told you that at certain times between the 28th of July and the 1st of August, 1886, he gave and delivered four hundred dollars to Mr. Martin, and that the object of giving it was to enlist and secure the friendship of Martin and to dissuade him from giving false testimony on the prosecution of Lee Chuck, then about to be tried for murder. believe the defendant's version, your verdict should be not guilty. It is not a crime in this state to encourage a witness with pecuniary gifts to be truthful, but neither is

If you

it among the recognized customs of this country to subsidize the personal integrity of our citizens in order to prevent them from lapsing into falsehood and perjury.”

This language could have but one meaning and purpose. In addition to incorporating an unproved fact into the case, it was an argument against the truthfulness of defendant's testimony, and its direct tendency was to influence the jury not to believe it. It might have been a legitimate argument in the mouth of the attorney for the prosecution; and, in such event, the attorney for defendant could have answered it as best he knew how, upon, at least, equal terms, counsel against counsel. But the weight of the opinion of the court had no place in either scale. The prosecuting officer in criminal cases is the district attorney, not the presiding judge of the court. The main duty of the latter is to see that the trial is orderly and legally conducted; to rule upon such questions of law as are presented to him, or to declare such law as is applicable to the case; and to sit impartially between the people and the defendant. But the moment he attempts to comment upon or argue about the weight of evidence, the credibility of witnesses, or the probability of their sworn statements, he usurps power and violates section 19 of article 6 of the state constitution, which provides that "judges shall not charge juries with respect to matters of fact." "To weigh the evidence and find the facts is, in this state, the exclusive province of the jury; and with the performance of that duty the judge cannot interfere without a palpable violation of the organic law." (People v. Dick, 34 Cal. 666.) The same principle is declared in numerous other decisions of this court. (See cases cited in Desty's Constitution of California, under section 19 of article 6.) The language objected to in the above charge is, therefore, clearly erroneous; and that it was material and prejudicial to appellant is apparent to lawyer or layman. It threw the weight of the court against the

defendant at the very pivotal point of the contest. For this reason the judgment must be reversed.

We shall not examine at length the many other assignments of error. It is proper, however, to notice two or three of them.

1. In order to show the materiality of the proposed false testimony, which, as is alleged, defendant sought to have Martin give, it was allowable, no doubt, to put in evidence the general nature of the crime with which Lee Chuck was charged; but we think that the court allowed the prosecution to go too far in that direction. The accusation against the defendant in the case at bar is that he sought corruptly to induce Martin to swear falsely that on the day Yen Yuen was killed he (Martin) "had seen some persons attack the said Lee Chuck with pistols, and that said Lee Chuck shot in amongst them." Surely but little was necessary to point the materiality of such testimony. And yet the prosecution was allowed, against defendant's objections, to introduce in evidence all the details of the arrest of Lee Chuck, and his conduct at the time, for instance, that he tried to shoot the arresting officer, that he had several pistols in his possession, that he had on his person a coat-ofmail, etc. How was all this relevant to a charge against the defendant, Pete, of an attempt to bribe Martin? Clearly it was an attempt, under the guise of another purpose, to wrongfully prejudice the jury against the defendant by inflaming their minds against a third person.

2. And in the same way the court went too far in allowing the testimony of the witness Martin to be corroborated or bolstered, by showing that he had made statements similar to those of his testimony to third parties, a thing which, as a general rule, is not allowable. This evidence was admitted under the rule that a detective officer who pretends to be an accomplice in order to ferret crime may prove that, in fact, he was not an accomplice, by showing that he disclosed what he was

doing to his superior officer. The rule, within its legitimate bounds, is no doubt well established; but in the case at bar it was allowed to be carried beyond its true limits. Courts should be careful not to permit a rule of evidence, proper under certain circumstances and for certain limited purposes, to be used as a means of opening the door to a mass of irrelevant matter never contemplated by the rule itself.

3. We think also that the court erred in allowing the witness Glennon to testify that he had learned since the arrest of defendant that his reputation before his arrest was bad.

4. The cross-examination of the defendant was certainly very broad; but as he testified in chief about his birth, parentage, education, and business, we cannot say that he did not open the door wide enough to justify what followed in the cross-examination.

There are many other points made which we do not deem it necessary to notice.

Judgment and order reversed, and cause remanded for a new trial.

WORKS, J., SHARPSTEIN, J., THORNTON, J., and PATERSON, J., concurred.

[No. 12854. In Bank.-January 29, 1889.]

ANDREW SIMPSON ET AL., RESPONDENTS, v. MATTHEW MCCARTY, APPELLant.

ATTACHMENT-SUFFICIENCY OF AFFIDAVIT AVERMENTS UPON KNOWL EDGE. An affidavit for attachment need not state whether its averments are based upon direct knowledge, or upon information and belief, and if the facts are stated positively, it will be implied that they were within affiant's knowledge.

ID.-AFFIDAVIT BY AGENT.-An affidavit for attachment made by a business agent of the plaintiff need not aver that he is an agent for the collection of the debt, nor that he makes it in behalf of the plaintiff, nor that the facts are peculiarly within his knowledge, nor that there is any reason why the plaintiff does not make it.