Glenn v. State

64 Miss. 724 | Miss. | 1887

ARNOLD, J.,

delivered the opinion of the court.

“ Bloody instructions, which, being taught, return to plague the inventor.” The giving of numerous instructions, drawn and passed on as they usually are, hastily, in the progress of a trial, is not of itself error, but it is very apt to lead to error. The dangerous practice of multiplying instructions for the State, in a simple case like the one before us, until fifteen were given resulted, as might have been expected, in fatal error.

The eleventh instruction given for the State, intended, no doubt, to apply to appellant, who was a witness, and the only witness, in his behalf, informed the jury that in determining the credibility of any witness they might take into consideration, among other things, “proof of his having made statements which he denies under oath.” A witness for the State testified that a short time before the homicide occurred, he heard appellant say that he intended to kill the deceased. When appellant was examined as a witness on the trial, he contradicted the witness for the State, on this point, and this is the only evidence shown by the record of any statement having been made, which was afterward denied under oath. This instruction contained not only a suggestion of the probable falsity of appellant’s testimony, such as was condemned in Buckley v. The State, 62 Miss. 705, and in Thomas v. The State, 61 Miss. 60, but it assumed that the discrediting fact that statements had been made and denied under oath had been proved. Such assumption was erroneous. Wesley v. The State, 37 Miss. 327. Whether such fact had been proved or not was a question for the jury and not for the court to determine.

The instruction confounds the distinction between evidence and proof. They are not synonymous terms. There may be evidence without proof. Evidence in legal acceptation is the means by which any alleged matter of fact is established or disproved. Proof is the effect of evidence and not the medium by which truth is established. 1 Greenlf. Ev., § 1. Nothing was said in Snowden v. The State, 62 Miss. 100, or in George v. The State, 39 Miss. 570, in the latter of which a similar instruction was given at the instance of the defendant, which sanctions such instruction being given on the facts of record here.

Reversed.