In the course of its instructions to the jury, the Court below used the following language: “ The defendant is charged with having murdered, in this county, on or about the 12th day of May, 1866, one S. M. Simpson. How, the first question for your decision is this : Was S. M. Simpson, on or about the 14th day of May, 1866, in this county, murdered ? In determining that question, the Court thinks, you can have no hesitation whatever.”
And at another place the following: “ Aside from the testimony given as to the statements of the defendant himself, as claimed to have been made by him, there is no evi*665dence whatever of any person being present at Simpson’s cabin at the time Simpson was killed, other than Simpson and this defendant.”
It is claimed on the part of the appellant, that, in using the foregoing language, the Court below erred.
The record contains no part of the testimony, and it is well settled that this Court will not, where such is the case, reverse the judgment on account of instructions alleged to be erroneous, unless it appears that such instructions would have been erroneous under every conceivable state of facts. (The People v. Levison, 16 Cal. 98; The People v. King, 27 Cal. 514; The People v. Dick, 32 Cal. 213.) This results from the rule, that the party alleging error must show it affirmatively. In view of this rule, we cannot say that the Court erred in telling the jury, that, aside from the evidence as to statements made by the defendant himself, there was no evidence before them that any person, other than Simpson and the defendant, was at Simpson’s cabin at the time the supposed homicide was committed. As we held in King’s Case, the seventeenth section of Article VI of the Constitution does not prohibit the Judge from stating the evidence in his charge; and the right to state the evidence includes the right to state that there is no evidence as to particular facts. (27 Cal. 513.) Hence, to so state may or may not be error, and whether it is or not, can be determined only upon an inspection of the testimony. When the appellant relies upon such a statement as error, he must bring up so much of the evidence as he claims proves or tends to prove the fact or facts in question, otherwise we must presume in favor of the action of the Judge.
We are of the opinion, however, that the other portion of the charge noted is within the clause of the Constitution which prohibits Judges from charging juries upon matters of fact, (Art. VI, Sec. 17,) and are unable to conceive of any state of facts under which, in view of that restriction, a Judge can be allowed to address such language to a jury.
*666It is manifest from the passage referred to, taken in connection with the rest of the charge, that the jury must have understood the Judge to intimate that, in his opinion, the evidence was sufficient to justify them in finding the crime of murder to have been committed by somebody, and that the only question for serious consideration was, whether the defendant was the guilty party. This, we think, was error, and one or two other passages of a somewhat similar character are also objectionable.
Whether wisely or not, the Constitution has abrogated the rule of common law by which Judges were allowed to express their opinions as to the facts in issue, or as to the weight of evidence.
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.
Whether the verdict was a nullity, it is unnecessary to say. It was certainly informal, and the Court ought to have explained its defects to the jury and directed them to put it in proper form.
Judgment reversed and new trial granted.