sylvania M. Co. v. Brady, 14 Mich. 260; Boykin v. Perry, 4 Jones, Law, (N. C.) 325. It is true, the evidence against the defendants is wholly circumstantial; and there can be no doubt but what that portion of it which relates to the son is extremely slight upon which to found a verdict. But the authorities cited indicate that such matter is not reviewable on appeal. It is next assigned as error that the court erred in not allowing John Mack to answer the impeaching question asked him by the defense, if he had not said to one Miner-the time, place, and parties present being stated that there was not evidence enough to hold the G d Mackeys, but that he intended to send them to jail and to hunt the evidence afterwards. The object of this evidence was to impair the force of the witness' testimony as showing that he entertained hostile or embittered feelings against the defendants. He was the magistrate who had bound the parties over, and a witness for the prosecution. The ends of justice are best attained by allowing a free and ample scope for scrutinizing evidence and estimating its real value. The question put contained all proper information as to time, place, and persons present, and the precise matter which was to be used against him; so, in the event he should admit having made such declaration, an opportunity would be afforded him to rebut or explain it. There is no distinction, so far as the rule is concerned, between admitting declarations of hostility of a witness for the purpose of affecting the value of his testimony, and admitting contradictory statements for the same purpose, as in either case an opportunity should be given the witness to explain what he said. The witness should have been allowed to answer the question; to say whether he did or did not make the alleged statement; or, if he did, to make his explanation of it. By so doing the jury would have been put in a position of estimating the real value of his testimony; of determining whether he was an impartial witness, testifying without prejudice or passion, or in fact a hostile witness whose prejudices and passion had colored his testimony, and requiring it to be closely scrutinized and weighed. It is next objected that the court erred in sustaining the objection of the state to the question asked by the defense of A. J. Henderson, whether or not Martin Mackey did not decline, on account of his physical condition on two days, to go out and show the claim. It appears at the June election, previous to the time indicated in the question, that Mackey had been severely beaten and bruised by the deceased, and that he was some time in recovering from the effects of it, and regaining his accustomed strength and health; that before he had entirely recovered some parties desired to purchase his mining claim and went to his cabin to see him, and it was proposed to show by the question that he was then in such a debilitated physical condition as caused him to decline to go out and show the mine, which was some distance off. The ultimate object of the evidence was to show that his physical weakness was such at the time of the murder that, considering the distance from his cabin, he would have had to travel over a rough and brushy trail across the mountains to the cabin where the deceased was killed; that it could not reasonably be attributed to him; in other words, if believed, it would have been a circumstance which would have gone far to prove that he did not commit the crime. It seems that he wanted to sell his mine, and if he was unable or declined to accompany the parties for the purpose of examining it, because of his physical debility, his complaints of a present existing pain or malady would be admissible. The declarations of a party are received to prove his condition, ills, pains, and symptoms, whether arising from sickness, or an injury by accident or violence. It is also objected that the court erred in not allowing the crossquestions asked by the defense of Charles Hughes, as follows: "Did Mr. Thompson go to you at the time you stated, and ask to see the boots in your possession, [referring to Mackey's boots,] said to belong to the clerk, and did he not, after examining them, exclaim, That is all right?'" 6 The boots which Mackey wore were in the possession of the officer, and were used in the prosecution as one of the strong circumstances in the case as connecting the elder defendant with the crime, and we think the witness should have been allowed to answer the question. The next objection is to an instruction of the court as follows: "It is charged in the indictment, as I have said, that Michael Purcell was killed on the twenty-sixth day of June, 1884, but it is not necessary for the state to prove that, or any other particular date in that connection; and it is sufficient if it be shown that the killing was done at any time prior to the finding of this indictment; that is, the twenty-ninth day of October, 1884. This the state has fully established. The state has also fully proved that Michael Purcell came to his death in Josephine county, Oregon, by having been shot with a gun." "The only material allegation of said indictment, about which there is any dispute, is that which charges these defendants with having purposely, and of deliberate and premeditated malice, caused the death of Michael Purcell." The effect of this instruction was virtually to take away from the consideration of the jury the only real disputed question in the case. It states that "it is sufficient if it be shown that the killing was done at any time prior to the finding of the indictments;" and then adds, "this the state has fully established." The defendants had pleaded not guilty to the indictment, and this put in issue every material allegation, and the proof of them devolved upon the state. The killing of the deceased by the defendants was the fact in dispute, and must necessarily be found by the jury before the question as to whether it was done premeditatedly or not could arise. It was a fact for the jury to find, and belonged exclusively to their province to determine from the evidence. But this fact the court withdraws from their consideration by instructing them it is fully established, and that the only ques tion about which there is any dispute is that which charges the defendants with having purposely, and of deliberate and premeditated malice, caused the death of Michael Purcell. The effect of the instruction was admitted at the argument, but it was sought to avoid it by the statement that this fact was expressly admitted by the counsel for the defendants in making his opening statement. But we do not thus understand the record, nor think any such admission was intended or meant, upon the facts disclosed by the record. The fact that Purcell had been killed was admitted. He had been found dead in his cabin, and evidently shot to death by some one. A coroner's jury had performed its office over his remains, and the fact that Michael Purcell was killed was well known and generally admitted. And this is all Judge HANNA'S statement amounted to. He admitted that Michael Purcell had been killed, but he did not admit that the defendants had done the deed. The doing of the deed was the fact in dispute, and which the defendants had denied by their plea to the indictment. By the indictment the defendants were not only charged with the killing of the deceased, but doing it with malice and premeditation. These were facts to be proved by the state, and to be found by the jury upon the issue joined. The killing of Michael Purcell by the defendants was, therefore, one of the principal facts in dispute, and which it was the duty of the jury to determine from the evidence. It was for them to say whether the evidence fully established this fact, and not for the court. And this is rendered all the more mischievous and dangerous from that which follows, that "the only material allegation about which there is any dispute is that which charges the defendants with having purposely caused the death of Michael Purcell." There is no other question, because, the killing of the deceased by the defendants being fully established, the only remaining question was whether it was done with malice and premeditation. This was consistent with what had preceded; and as the killing had been fully established, in the opinion of the court, it was natural that this fact should have been assumed, and the attention of the jury directed to the only question about which there was any dispute. In People v. Dick, 32 Cal. 216, the court say: "It is better for the court, in charging the jury in a criminal case, to avoid assuming any material fact as proved, however clear to the mind of the court such fact may seem to be established, because it is the province of the jury, unaided by the judge, to say whether a fact is proved or otherwise." And in State v. Whitney, 7 Or. 390, KELLY, C. J., said: "It is the exclusive province of the jury to determine questions of fact. They and they only have a right to judge of the credibility of witnesses, and the weight and effect of their testimony. And it has always been held to be an erroneous instruction when the court assumed any controverted fact to be proven. instead of submitting to the jury the question whether or not it has been established by the testimony before them.” The judgment must be reversed, and a new trial ordered. (12 Or. 25) HACKETT and others v. WILSON and others. Filed February 13, 1885. 1., FRANCHISE-FERRY-LAW OF OREGON-COUNTY COURT-EXCLUSIVE RIGHTS. In the exercise of the powers with which it is clothed by the statute, a county court, after granting to a party a license to keep a ferry at a certain place, cannot grant a like license to another party, who proposes to compete with the first licensee. 2. SAME OREGON STATUTE-ITS EFFECT UPON THE ASSIGNMENT OF FRANCHISE AND AFTER DEATH OF LICENSEE. The statutes of Oregon impose no restriction upon the sale or transfer of a ferry franchise, nor any provision that the franchise shall be lost upon the death of the party to whom it was issued. Appeal from Multnomah county. Williams, Hill, Durham & Thompson, for respondents. LORD, J. The existence of the plaintiffs' ferry, known as the "Albina Ferry," is admitted by the record. The petition of the defendants rests their application in chief upon the insufficiency of the facilities as already existing and established for the accommodation of the public in crossing the river between the termini of the Albina ferry. As a link to connect the line of travel between these points, the averment is that the facilities are too limited to meet the present and growing demands of the public convenience. The order of the county court not only assumes the legal existence of this ferry, but undertakes, on account of the proximity of the Montgomery ferry, which its order licenses and establishes to accommodate the same line of travel, and the consequent liability apprehended in the exercise of its franchise of interfering with the passage of the boats of the Albina ferry and the approach to its landings, to provide for its protection. The view we take of the question to be adjudicated, as thus presented by the record, renders it unnecessary to notice some of the matters discussed in the briefs of counsel. We shall only examine the record for the purpose of determining whether the county court, to whom the law has confided the authority to grant licenses for establishing ferries upon the conditions therein expressed, has exceeded its jurisdiction, or exercised its functions erroneously, upon the case made by the record, in granting the Montgomery license. The exclusive right of the county court in a proper case to grant a ferry license, when satisfied the same is necessary for the public convenience, is not questioned. The contention is as to the limits within which this power or jurisdiction may be exercised with regard to a ferry licensed and established. Our statute provides that the county court may grant a license to any person entitled and applying therefor, to keep a ferry across any lake or stream within its respective county, being satisfied that a ferry is necessary at the point applied for, which license shall continue in force for a term to be fixed by the court, not exceeding five years. Gen. Laws Or. § 40, p. 731. But it fur ther provides that every person licensed to keep a ferry shall have the exclusive privilege of transporting all persons and property across the stream where such ferry is established, and shall be entitled to all the fares arising therefrom. Id. § 51, p. 733. It is argued that the exclusive privileges which attach to the grant of a license by virtue of this last clause, limits and restricts the jurisdiction of the county court in granting licenses to such places only as will not affect injuriously an existing ferry licensed and established by its authority. This proceeds upon the theory that the jurisdiction conferred by the former provision, and the restrictions placed upon its exercise by the latter, when taken and construed together, so as to give them one effect only, declare or adopt the common-law doctrine as applied to ferry franchises; an able and exhaustive resume of which may be found in the dissenting opinion of Mr. Justice STORY in Charles River Bridge v. Warren Bridge, 11 Pet. 506. It is also contended that the doctrine of the law as applied to ferries by the majority, in the decision of the Warren Bridge Case, is not opposed to, but sustains and fortifies, this construction. This position is that the plaintiffs failed in that case because their charter gave them no exclusive privileges, and the court held, as against the public, such privileges could not be implied; but e converso, where such privileges are expressly conferred, the doctrine of the common law would apply. On the other hand, the "exclusive privileges" conferred by our statute are confined to the ferry landings, the place "where such ferry is established," and does not extend on each side, so as to prevent the licensing of contiguous and rival ferries, when the county court is "satisfied" the public accommodation requires it. That, in effect, the statute but reiterates in express terms the Warren Bridge Case, and confines the "exclusive privileges" to the landings or place "where such ferry is established," and that no "exclusive privileges" can be implied beyond this, as against the public, or jurisdiction of the county court to license other ferries contiguous, whatever may be the effect of such competition in withdrawing tolls. In our judgment, the primary object to be accomplished by our statute in conferring jurisdiction upon county courts in their respective counties to establish roads, and to license ferries for the transportation of persons and property across streams which obstruct land travel using public ways, is to secure the public accommodation. For the attainment of this end, but as subordinate to it, when a ferry franchise is granted, the right to take lawful tolls is conferred as an equivalent for the obligation to accommodate the traveling public. Although the taking of such tolls is privati juris and incident to the franchise, "a ferry is publici juris, and cannot be created without a license, and is a thing of public interest and use." Attorney General v. Boston, 123 Mass. 478. As a link in the chain of transportation on dry land, a ferry forms a part of a public highway, or a eonnecting link between places in which the public has rights, and as |