¶1dissenting:
¶2I am unwilling to give my sanction to a reversal of this case upon the ground stated in the opinion of the court. The constitution of this state declares that “judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law.” (Article VI, sec. 12.) The remarks of the district judge, while verging closely upon the prohibited line of the constitution, do not, in my opinion, cross it. It is claimed that the language of the judge, construed as it must be with reference to the time and manner of its use, was equivalent to a statement that there was no evidence tending to show ah assault. If these premises are correct, then the conclusion arrived at by the court must necessarily follow, provided there was any evidence, however slight, tending to show an assault. But it seems to me there is a marked difference in the facts whether a judge states to the jury that there is no testimony upon a certain point, or simply states that he has no recollection of any testimony being given upon the pioiut. In the former case the statement would, if there was any testimony, clearly invade the province of the jury, because the question at issue would thereby be withdrawn from their consideration; but in the latter case it would be left to the jury to decide whether there was any testimony which th.e court had overlooked, and, if any, whether it was sufficient to establish the fact in controversy, and hence the province of the jury would not necessarily be invaded. I do not think the time of making the remarks in question changes the result I have stated.
¶3Under the provisions of the constitution the district judge may, if so inclined, “ state the testimony.” If in doing so he leaves out some material parts thereof, at the same time informing the jury that he has stated all the testimony within his recollection, but that they are the exclusive judges of the facts, and that it is their duty, in deciding the case, to consider all the testimony adduced at the trial, would the omission of the judge to state all the testimony justify a reversal of the ease ? I think not. Every prac*468titioner knows that in the trial of causes there often arises a controversy between counsel in relation to the testimony. Iiow is that controversy to be decided ? If a reporter has taken down the testimony his notes may be referred to. Each counsel may state his recollection. The court may state what its memory is in regard thereto. But, after all, it is for the jury to decide, and if the disputed question is not withdrawn from their unbiased consideration, their peculiar province to decide the facts is not invaded.
¶4The principles .announced in the decisions cited in the opinion of the court and in appellant’s brief are correct upon the facts which existed therein. It is always the province of the jury to say whether a fact is proved or not. They are the exclusive judges of the credibility of the witnesses, of the weight of the testimony, and of the facts established by the testimony. They must be left free to act in accordance with the dictates of their judgment. The final decision upon the facts rests with them, and any interference by the court with a view to influence them in' finding a verdict against their convictions is unwarrantable and irregular. The constitutional provision is violated whenever a judge makes any remarks in the presence of the jury, or so instructs them as to force the jury to a particular conclusion upon the -whole, or any part, of the case, or to take away their exclusive right to weigh the evidence and determine the facts from all the testimony given in the case. But in making the remarks in this case the district judge did not, in my opinion, charge the jury in respect to a matter of fact. He did not express any opinion upon the weight of the' testimony, or make any statement as to^ the ' credibility of the testimony as given by any witness.
¶5When an attorney desires an instruction to be given upon his theory of the case, is it not proper for him to call the attention of the court to the particular testimony upon which he relies to sustain the instruction ? If he omits to do so, and the court informs him that it has no recollection of any testimony • having been given tending to show the existence of a fact referred to iu the instruction, is it not *469the duty of counsel to refresh the memory of the court by a reference to the testimony ? It is true that the court is not usually called upon to make any remarks in giving or refusing instructions ; but, if it did not remember the testimony, would it be improper to request counsel to refer to the particular testimony upon which they rely, so as to enable the court to act intelligently in the matter?
¶6In People v. Barnhart the court agreed in its recollection with the district attorney that no evidence had been given of the character claimed by defendant’s counsel, and at the same time said “ that the jury were the sole judges of what the testimony, if any, in that respect was.” Defendant’s counsel excepted to the action of the court in allowing the district attorney to proceed in arguing the case upon the theory that no such testimony had been given. The supreme court declared the exception to be without merit: “An erroneous statement of the testimony to a jury by counsel in the trial of a cause is not an error for which a new trial will he awarded. It would be strange if it was. It often occurs that counsel do not agree as to what the testimony is. Indeed, it rarely happens that they do. It is for the jury to determine that question, and so the court told the jury in this case, at the same time affording defendant the opportunity, of which he did not avail himself, to show from the reporter’s notes just what the testimony was.” (59 Cal. 402.)
¶7In State v. Reynolds the court stated the testimony given by the witnesses in chief, without adverting to the facts elicited upon the cross-examination ; but closed its remarks with the injunction that the jury “must base their verdict upon all the evidence.” The court, in disposing of the exceptions to the omission of the court, said, quoting from the previous decision of State v. Grady, 83 N. C. 643: “It was the duty of counsel, if evidence important to the defense had been overlooked, then to call it to the attention of the judge and have the omission supplied. It would neither be just to him, nor conducive to a fair trial, to allow this neglect or oversight, attributable to the counsel quite as much as to the judge, to be assigned for error, entitling the accused to another trial.” (87 N. C. 546.)
¶8*470In State v. Reed the court said : “It can hardly be-expected that a judge, in his charge, shall allude to all the testimony developed during a long trial, or all the circumstances growing out of it, nor is it necessary after a full and careful analysis of it by able counsel. But if any material omission or misstatement occur, 'it is the privilege and the duty of counsel to call the attention of the court to it at the time, otherwise all grounds of complaint are waived.” (62 Me. 137.)
¶9These cases do not present precisely the same question as in the case at bar; but the principle announced is, in my opinion, more applicable to the facts of this case than are the principles ’announced in the cases cited in the opinion of the court.
¶10I have, so far, only considered the question whether the remarks of the judge, of themselves, justify anew trial, and have arrived at the conclusion that they do not. This subject has been discussed'independent of-the question whether the instructions, with reference to which the remarks were made, were correct or not. Of course the judgment should be reversed if the instructions refused were in all respects correct, and there was any evidence in the case tending to show an assault upon the defendant. But I am of opinion that the instructions were not correct. The use of the word “affray” in lieu of “homicide” was calculated to mislead the jury with reference to the disputed question whether deceased, prior to the homicide, assaulted the defendant. An “affray” is defined to be “the fighting of two or more persons in a public place to the terror of the people.” (Desty, Amer. Crim. Law, see. 95a: Simpson v. State, 5 Yerg. 357; Hawkins v. State, 13 Ga. 324; Wilkes v. Jackson, 2 Hen. & M. 360; State v. Sumner, 5 Strobh. 56; McClellan v. State, 53 Ala. 640.) An assault is any unlawful physical force partly or fully put in motion which creates a reasonable apprehension of physical injury to a human being. (1 Bish. Crim. Law, sec. 548; 2 Bish. Crim. Law, see. 23; State v. Hampton, 63 N. C. 14; State v. Vannoy, 65 N. C. 533; State v. Gorham, 55 N. H. 168; Com. v. *471White, 110 Mass. 409.) The use of the word “ affray ” implied that an assault had been made. The instructions assumed the existence of a fact that was in dispute, and were, therefore, properly refused. The mere fact that the court gave a wrong reason for a correct ruling is not, of itself, sufficient to justify a reversal of the case.