Barber Bill, impleaded with Samuel Carr, Plaintiff in Error, v. The People, Defendants in Error, 14 Ill. 432

Treat, C. J. The counsel for the prisoner had a clear right to insist before the jury, that Mrs. Carr did not go into the room where the alleged robbery was committed, until the prosecutor had laid the money on the counter. The witness Burk swore expressly that such was the fact; and she was flatly contradicted by the prosecutor. This conflict of testimony presented a question for the decision of the jury. It was for them, and not the court, to determine which of the witnesses was to be believed.

The court erred in saying to the counsel, in the presence and hearing of the jury, that there was no evidence showing that Mrs. Carr went into the room after the prosecutor had deposited the money on the counter. It was expressing an opinion as to the facts of the case, which may have influenced the action of the jury, and thereby have operated to the prejudice of the prisoners. It may have had the same effect upon the jury, as if the court had directed them to disregard the testimony of Burk altogether.

As her statements, if true, sustained the counsel’s position, the jury would naturally conclude from the remark of the judge, that he regarded the witness as unworthy of credit. It is peculiarly the province of a jury to pass upon the credibility of a witness. A court may properly correct counsel when they mistake the evidence, or assume as facts what is not proved ; but there was no occasion for any such interference in this case. There was testimony tending to sustain the position taken by counsel; and it was the right of the prisoners to have it considered by the jury.

The judgment is reversed, and the cause remanded. Judgment reversed.