(dissenting). The bill of exceptions recites, among other things, that the court—

In the case of Starr v. United States, 153 U. S. 614 , 14 Sup. Ct. 919, 38 L. Ed. 841 , the Supreme Court, in holding that the trial judge did not sufficiently separate the law from the facts of the case, and leave the facts in unequivocal terms to the judgment of the jury, for which reason a new trial was awarded, said:

And after making reference to further remarks of the trial court, it ended its opinion thus: '

A late apparent tendency on the part of some courts to encroach upon the province of the jury, which, I take it, was in every case unintentional, malees it proper, I think, to set forth at length the above declaration of the Supreme Court. Turning to the instructions in the instant case, it is seen that, while the learned trial judge did expressly tell the jury that “anything the court°says with reference to the facts and the evidence in the case and. the credibility of the witnesses is a matter which can have no weight with them except as it appeals to their judgment,” which they must follow, the court had before, as the bill of exceptions distinctly shows, stated not merely what the. judge thought the evidence showed, but stated certain things as absolute facts, and one at least by way of argument, which obviously might have influenced the verdict of the jury. I italicize those statements of the trial court which I think were of that character. After stating that there was testimony that one of .the milk bottles contained something smelling like alcohol, the court said:

*474 In view of the nature of the error committed, even if there had been no exception taken, I should feel obliged to take notice of such error and act accordingly, under the undoubted power of the court to take notice of a plain error, even though no objection or exception be taken by counsel; but here counsel did—

While it is true that the exception taken was somewhat indefinite, and while the court has the right, of course, to “summarize” the testimony in his charge, the charge in question shows upon its face that, in making such summarization, the court did, as I view it, invade the province of the jury, by himself stating what the testimony proved by specifically designating certain specific facts as having been proved, and the exception of counsel, it seems to me, covered that.

In my opinion the judgment should be reversed, and the case remanded for a new trial as to the plaintiffs in error.