Upon a motion for a new trial upon a case it might be otherwise, but such an expression of opinion does not of itself constitute erro R It becomes im- portant, therefore, to determine whether the language which is the subject of this exception amounted to an instruction as to the law applicable to the evidence in the case, or was a mere declaration of the opinion of the judge upon the evidencE On behalf of the defendant it had been insisted that the evidence warranted the jury in convicting him of manslaughter only, while, on the other hand, the counsel for the prosecution had insisted that the evidence required a conviction for murde R In respect to these opposing " theories," the learned judge having very properly submitted it to the jury to determine whether the evidence as detailed by the witnesses for the pro- secution was to be credited, proceeded to say that, if they should believe that evidence, he could see no ground left which would warrant them in finding the defendant guilty of man- slaughter, but, on the other hand, the circumstances of the case, if believed, established a case of murde R It may not have been intended that the jury should understand that they had no right to convict the defendant of manslaughte R But I think the language may well be so construed Indeed, I think it most likely that the jury understand from the charge that, if they would decide according to the law applicable to the case, they must either convict the defendant of murder or wholly acquit him.

The language is emphatic and unqualified: " Under the circumstances as given you by the witnesses for the prosecution, I see no ground to warrant you in finding the defendant guilty of manslaughte R" Upon such a charge, the jury may well have supposed that a verdict of manslaughter would have been in violatiom of law, If the charge was such that it might be so understood, I think it was erroneouS The evidence on the part of the prosecution was such as would, undoubtedly, have warranted a conviction for murde R The jury might well have come to the conclusion that the fatal blow was given with a premeditated design to effect deat HOn the other hand, I am not prepared to say.

Hat the jury might not have been war- ranted in finding that the act was committed in the heat of passion.

If so, the jury, instead of being told that there was no ground upon which they w r ould be warranted in convicting of manslaughter, should have been instructed as to the distinction between murder and manslaughter, and left to convict the de- fendant of the one crime or the other, as they should find, from the evidence, that the act was committed with a premeditated design to effect the death of Gleason, or in the heat of passion.

Regarding that portion of the charge which has been inserted in the bill of exceptions rather as an instruction upon the law applicable to the facts proved, than an opinion advisory as to the effect of the evidence, I am inclined to think the charge had the effect, not intended perhaps, to mislead the jury, by inducing them to dismiss from their minds the consideration of the question whether their verdict should be murder or man- slaughte R For this reason, I am of opinion that the judgment should be reversed and a new trial ordered On the trial of an indictment for incest, charged to have been committed by a father with his daughter, the declarations of the defendant are competent evi- dence upon the question of consanguinity.