Carder

Defendant was convicted of the larceny of a calf, and he appeals from the judgment and order denying his motion for a new trial.

Among the alleged errors, the most serious is involved in certain remarks to the jury made by the trial judge. It seems that after the case was submitted the jury returned into court at 3:35 P. M. on Friday, and asked to have certain evidence read to them. This was done and they again retired. A few hours later they returned to the courtroom and the foreman informed the presiding judge that in his opinion the jury could not agree. The trial judge then said: “Ton must work this out, gentlemen, if there is anything I can help you in I can do it, and I will be here ten minutes longer to help you. You oughtn’t to make up your mind you are not going to agree on this kind of a case, simply calls for the sensible reasoning of men according to the evidence and talk it over together.” Furthermore, in reply to a juror’s question, the' court said: “I don’t want to decide any question of fact for you; that question though it seems very plain to me.” A little later he used this language: “You must try and reconcile the testimony if you can and come to a verdict,…