Simmons, Justice.
Lovejoy was convicted of murder, in Dekalb su perior court. He made a motion for a new trial, which was refused, and he excepted. Among the grounds of the motion is the following:
Because the court erred in giving the following charge to the jury: “There are two counts in this bill of indictment. One charges defendant with being present aiding and abetting others to cqmmit the offence; and there is another which charges him, with those others, with being the principal actors in this case. According to the evidence, the law arising upon it makes out a case where all of those men are principal actors, or not at all; and therefore, if you find this defendant guilty, you would say, upon the principles of law I have given you in charge, ‘We, the jury, find the defendant guilty of murder,’ and as one of the principal actors in this transaction. According to the law as applied to this evidence, there is no separation here; it is not a case of being present aiding and abetting, but is a case where, according to the evidence, it is made out either that they were all guilty of being principal actors, or were not guilty at all, or that this defendant was not guilty at all.” One of the errors assigned upon this charge is, that it was an expression or intimation of opinion of the court upon the evidence. We think the exception is well-taken. We have carefully read the evidence taken on the trial of this case, and while most of the evidence for the State tends to show that Lovejoy was one of the principal actors, and most of the evidence for the defendant tends to show that he was not present at the difficulty, there is some evidence which would seem to indicate that he might have been present aiding and abetting in the homicide, hut not as one of the principal actors therein.
It is argued, however, that this charge did not injure the accused, because the punishment is the same whether he is a principal in the first degree.or in the second degree. It is true that the punishment is the same, but we think that the accused had a right, under the law, to be tried for the offence of which he was really guilty, if guilty at all. The State charged him in two counts in the indictment, and did not abandon either on the trial. There being some evidence indicating his presence, aiding and abetting, we do not think the trial judge should have taken the consideration of it from the jury and instructed them, in substance, not to consider it. Our law is so jealous of the right of the jury to come to their own conclusion about the evidence and the weight of evidence, that it positively forbids any judge, on the trial of civil or criminal cases, “to express or intimate his opinion as to what has or has not been proved,” (code, §3248,) and declares that “should any judge . . violate the provisions of this Ejection, such violation shall be held by the Supreme Court to be error; and the decision in such case reversed, and a new tidal granted.” This being an expression of opinion by the trial judge upon the evidence, we have no discretion in the case, but must reverse the judgment of the court below.
Another ground taken in the motion for a new trial is, in substance, as follows: After charging the jury as to the right of the accused to make a statement, and that they might give it such force as they saw proper, and believe it in preference to the sworn testimony if they saw proper, the judge added the following: “ I further charge you that what the law means by believing the defendant’s statement in preference to the sworn testimony is, where the sworn testimony and the statement conflict. If you give this statement force and consider it, then in considering it, it would be your duty to give it just such force as you see fit. His statement, to avail liim, must be in those parts that are in conflict with the evidence, and in conflict in material matters.”
We are inclined to think that this part of the charge is erroneous. Under this charge, the prisoner’s statement, to avail him, must be in conflict with the sworn testimony, and only when in conflict could he get any •benefit from his statement. We think, however, that on the contrary, the prisoner’s statement may avail him not only where the same is in conflict with the sworn testimony, but where no such conflict exists. This case is a good illustration of the unsoundness of the charge. A majority of the State’s witnesses swore positively that the defendant was present at the difficulty and fired a ‘pistol at the officers and their posse; while, on t*he other hand, the defendant’s witnesses, including the sheriff, who was the arresting officer, swore positively, that the prisoner was not present and did not fire a pistol. The prisoner in his statement corroborated the testimony of the sheriff and his other witnesses ; yet under the charge of the court, the jury were not allowed to give him the • benefit of his statement, even to corroborate the testi- . mony of his witnesses, when that testimony conflicted with the testimony of the State’s witnesses.
We think, also, that the defendant’s statement is frequently helpful to the jury in explaining the testimony of witnesses, although it may not conflict therewith. In this case most of the witnesses testified that this defendant was seen with Pritchett, the principal actor, upon the railroad after the difficulty; and as to this fact there was no conflict; yet the defendant’s statement explains how it was that he happened to be with Pritchett after the difficulty; that he was going home, and that Pritchett overtook him on the road and walked with him to the station, and was seen with him by the sheriff and others. Under this charge, this explanation could not avail or benefit him in the minds of the jury, because it did not conflict with the sworn testimony.
There was no error in the other grounds of the motion.
Judgment reversed.