The propositions stated in the first two head-notes require no elaboration. The charge excepted to, as set out in the third headnote, is a clear expression of an opinion upon the weight of evidence. It determines judicially a question of fact which should have been left to the jury; and whether that fact was properly determined or not by the judge, this court, according to the provisions of section 4334 of the Civil Code, is without discretion to withhold a judgment reversing a refusal to grant a new trial upon an exception based upon this instruction to the jury.

Judgment reversed.