Criminal Law—Homicide—Proper Instructions as to Motive.—Hpon the trial of a defendant accused of murder, it is proper to Instruct the jury that motive is not the ultimate fact to be proved; and that, if the crime is sufficiently proved, it does not matter whether there is a motive or not; but that, in a case depending upon circumstantial evidence, the presence or absence of motive is matter of corroboration, and makes other evidence more or less persuasive, and diminishes or increases the presumption of innocence.

Id.—Improper Instructions as to Motive—Probative Force of Evidence—Charge Hpon Matter of Fact.—An instruction requested toy the defendant that “it is against all experience and reason to suppose that a man will imperil his own life and inflict upon another a brutal crime without a motive, and in the mere wantonness of depravity,” involves no rule of law, but is only as to the probative force of evidence, and is properly refused. A charge given by the court that “it may he impossible to show or establish a motive, for the reason that we cannot fathom the mind of the accused on trial, and ascertain if there is not a hidden desire of vengeance or some passion to he gratified,” is an argument against the defendant on the facts, and is an improper charge as to a matter of fact.

Id.—Construction of Constitution—Province of Court and Jury.— Section 19 of article III of the constitution, providing that “judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law,” refers to the province of the jury to determine ail matters of fact, and of the court to determine the law, and forbids either the judge or the jury to trespass upon the province of the other. The court must not charge or advise with respect to matters of fact, and its power to state the testimony is exclusive of any other power of the court in its charge in respect to the evidence; and the prohibition upon it is coextensive with the exclusive province of the jury.

Id,—Relative Force of Direct and Circumstantial Evidence — Instruction as to Matter of Fact.—The law declares nothing as to the relative probative force of direct and circumstantial evidence; and it is wholly matter for the jury to determine, according to their convictions, from the evidence. An instruction to the jury that circumstantial evidence is not entitled to a less degree of credit than direct evidence, and that circumstances are not likely to be fabricated, is an instruction as to matter of fact within the prohibition of the constitution. [McFarland, J., Garoutte, J., and Van Dyke, J., dissenting.]

Id.—Oases Overruled.—People v. Cronin, 34 Oal. 191, and cases affirming the doctrine of that case as to the relative weight of direct and circumstantial evidence, overruled. [McFarland, J., Garoutte, J., and Van Dyke, J., dissenting.]

Id.—Inapplicable Decisions as to Weight of Circumstantial Evidence. The decisions made by the courts of other states in relation to the relative weight of direct and circumstantial evidence, where the trial judges were free from any constitutional or statutory restrictions upon their power to sum up the evidence, are inapplicable under our constitution.

Id.—Effect of Prior Decisions — Construction of Constitution — Power of Judges to Criticise Evidence.—Though it is conceded to be a proper rule of construction that the words of our constitution are to be construed in the same sense that had been previously fastened upon similar language by the decisions of other states, yet there are no authoritative decisions of other states which have fastened upon the language of our constitution the construction that judges may, in their charges to juries, criticise the weight and credibility of evidence.