¶1I concur in the modification of the judgment in this case, and also in the points stated in the syllabus. In my view our statute has changed the common law so far as to practically prohibit the presiding judge from examining the witnesses in whole or in part in a criminal case. Under the common law, as counsel was not allowed to a prisoner in the trial of a charge of felony, the judge was supposed to act as the prisoner’s counsel. It became the judge’s duty, therefore, to cross-examine the witnesses, and protect the rights of the accused. In this country, however, the common law rule which denied. counsel to a person accused of felony has not prevailed, and one of the guarantees of the constitution of the United States and of this state is, that a party accused of crime shall be entitled to counsel to make his defense, and a trial before an im*342partial jury. A trial cannot be fair and impartial if the judge is permitted, either directly or indirectly, to express an opinion upon the facts. His opinion necessarily would have great weight with the jury, and as he is not permitted directly to give his views upon the facts he should not be permitted to do so indirectly, either by his conduct or the form of questions to witnesses. It may be said that in some cases it would be impossible to convict a party unless the judge should bring his influence to bear upon the jury. Such an argument, instead of being in favor of the practice, is directly opposed to it. Ordinarily, if the facts will justify the jury in finding a verdict of guilty, the probabilities are that they will do so. If the testimony leaves the guilt of the accused in doubt he is entitled to the benefit of that doubt, and no influence outside of the testimony should be brought to bear upon the jury to induce them to overcome such doubt. Otherwise, the accused will be deprived of a constitutional guaranty — a fair trial, and perhaps be unjustly convicted.
¶2Our statute prohibits oral instructions to a jury except by consent of parties, and this prevents the judge from directing the jury in any manner, unless in writing in the presence of the parties, where exceptions may be taken to the ruling or direction. A fair trial means a trial before an impartial jury, who without extraneous influence will be guided by the testimony alone in rendering a verdict.
¶3The law clothes the judge with power to determine the law, and entrusts to the jury all questions of fact; and this division of duties should be recognized and adhered to on a trial.