Nov. 1893.] Opinion of the Court- ANDERS, J. The possession of recently stolen property is a circumstance to be considered by the jury in connection with all the other evidence in the given case in determining the guilt or innocence of the accused; and the presumption that may be drawn from such possession is one of fact merely, and is to be determined by the jury alone. Appeal from Superior Court, Lincoln County. N. T. Caton, and C. S. Voorhees (Jones, Voorhees & Stephens, of counsel), for appellant. J. W. Merritt, and James A. Haight, for The State. The opinion of the court was delivered by ANDERS, J. On the trial of an information charging the defendant and one George Gibbons with the crime of horse stealing, the defendant, having been separately tried, was convicted and sentenced to imprisonment in the state penitentiary for the term of five years. He brings the cause to this court for review upon exceptions reserved and errors assigned. The alleged errors relate mainly to the instructions given by the court to the jury, but objection is made to the decision of the court in overruling appellant's objection to the evidence of one Vent, offered for the purpose of impeaching William Johnson, on the ground that no proper foundation had been laid for the introduction of such testimony. When Johnson was on the witness stand he was asked if he remembered having a conversation with Mr. Vent down in what is known as Jim Campbell's saloon last July, in reference to this case, and if he did not then make certain statements, which counsel for the state repeated and which the witness denied that he made. Subsequently Vent was called as a witness and interrogated as to what Johnson said in the conversation alluded to. The court permitted the witness, over appellant's objection, to detail certain statements which he testified Johnson made to him Opinion of the Court- ANDERS, J. [7 Wash. at this saloon, and which were substantially the same statements that Johnson denied having made. It is claimed on behalf of the appellant, that "time, place and circumstance" were by no means sufficiently indicated in the question propounded to Johnson to justify the admission of the testimony given. While the particular circumstances and the exact time of the supposed conversation were not called to the attention of the witness on his cross examination, still we think his attention must have been so directed to the particular statements in regard to which he was interrogated, that he was, in no way, prejudiced or harmed by the ruling of the court. The record shows that the objection made by the defendant at the trial was, that the time of the alleged conversation was not sufficiently specified, not that the "place and circumstance" were not designated. It may be that the exact hour or day of the week or month was unknown, yet the court would not have been justified, under such circumstances, in rejecting the testimony on that ground alone. We come now to the consideration of those portions of the court's charge to the jury which appellant claims were erroneous and which legally entitle him to a new trial. While attempting to convey to the minds of the jury that it was not necessary to prove that a crime was committed on the exact day alleged in the information, but that the proof of any time within the statute of limitations would be sufficient, the trial judge remarked that "it is only necessary to allege the date in order to identify the crime." The objection made to this language is that the court thereby assumed and so told the jury that a crime had been committed. The remark was a general one, and no doubt was not intended by the judge as an expression of his opinion upon the weight or effect of the evidence in the case before him. Nor do we think the jury could have understood the court as saying, or intending to say, that Nov. 1893.] Opinion of the Court-ANDERS, J. the crime charged in the information, or any crime, had been committed. While the expression was perhaps not as apt as it might have been, the idea evidently intended to be conveyed was, that it was only necessary to allege a date in an information in order to show that the acts constituting the crime, as therein set forth, were done at some time. within the statute of limitations—and thus to "identify" the crime charged-as one for which the accused might be legally tried. The following instruction is also complained of by the appellant: "But if the defendant was not guilty, and if you find from the testimony that he was not assisting in the theft of the horses stolen by Gibbons, then he would not be guilty of the offense charged in the information simply by reason of his assisting Gibbons in shipping the horses out of the country." It appears by the testimony of Gibbons that he himself had been convicted of the theft of the horses, and that the appellant was likewise concerned in the larceny, and assisted him, Gibbons, in shipping the stolen horses to the State of Illinois; but it also appears that Gibbons admitted on cross examination that while testifying in his own behalf on his trial for stealing these same horses, he then swore, in substance, that appellant had nothing to do with the larceny, but that what he then testified to was not true. If it was necessary, in order to determine the guilt of the defendant, to show that Gibbons stole the horses and that the defendant merely assisted him, in some way, in so doing-and that seems to have been the theory of the prosecutionthen it was improper for the court to say to the jury, directly or indirectly, that Gibbons stole the horses in controversy, or that the defendant assisted him in shipping them out of the country. The language of the learned judge shows that he assumed, as proven, the existence of Opinion of the Court- ANDERS, J. [ 7 Wash. facts which it was the exclusive province of the jury to determine from the testimony adduced before them, and this we think was error. The court, in its charge to the jury, also said: "In this case, if you believe from the evidence that prior to the commission of the crime alleged in the information, the defendant had always borne a good reputation, good character for honesty among his neighbors, in the neighborhood where he lived, then this is a fact proper to be considered by you in determining whether or not the witnesses who have testified to facts tending to criminate him have been mistaken, or have testified falsely or truthfully." Here again the learned judge invaded the province of the jury and commented on the facts of the case sufficiently to convey to their minds that, in his opinion, witnesses had testified to facts tending to criminate the defendant. In our judgment, this statement was not only violative of the constitutional provision that "judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law," ($16, art. 4, State Con.), but may have been highly prejudicial to the defendant. It is doubtless true that, in jurisdictions where the judges are permitted to state the facts and to sum up the evidence, such instructions as that now under consideration would not be deemed erroneous, but, where the " supreme law declares that judges shall not charge juries with respect to matters of fact, nor even comment thereon, the rule must be different. It is not the quantum of any particular comment, but all comment whatever, that is inhibited by the constitution; and, therefore, courts should be extremely careful to confine their instructions solely to declaring the law. All remarks and observations as to the facts before the jury are positively prohibited, and if any such are made, the judgment will be reversed unless the appellate court can see that the accused was in no wise prejudiced thereby. Nov. 1893.] Opinion of the Court- ANDERS, J. Upon the question of the possession of recently stolen property, the court charged the jury as follows: "I instruct you further that the possession of recently stolen property is regarded in law as a criminating circumstance, tending to show that the possessor stole the property, unless the facts and circumstances surrounding or connected with said possession, or other evidence, explains or shows said possession might have been acquired honestly. In this case, if the jury believe from the evidence, beyond a reasonable doubt, that the property described in the information was stolen, and that the defendant was found in possession of the property soon after it was stolen, then said possession is in law a criminating circumstance, tending to show the guilt of the defendant, unless the evidence, and the facts and circumstances proved, show that he may have come honestly in possession of it." It is contended on behalf of the appellant that the court in thus instructing the jury, not only commented on the facts in evidence, but failed to declare the law correctly. And we are of the opinion that the instruction is, in a great measure, open to the criticism made by counsel. The possession of recently stolen property may or may not be a criminating circumstance, and whether it is or not depends upon the facts and circumstances connected with such possession. It is a circumstance to be considered by the jury in connection with all the other evidence in the given case, in determining the guilt or innocence of the accused; and its weight, as evidence, like that of any other fact, is to be determined by them alone. People v. Chambers, 18 Cal. 383; People v. Ah Ki, 20 Cal. 178; People v. Noregea, 48 Cal. 123; State v. Humason, 5 Wash. 499 (32 Pac. Rep. 111); Watkins v. State, 2 Tex. App. 73. Any presumption that may be drawn from such possession is a presumption of fact merely; in other words, it is only an inference that one fact may exist from the proof of another, and does not amount to a rule of law. Whart. Cr. Ev. 758; Smith v. State, 58 Ind. 340; State v. Hodge, |