| Ark. | Feb 19, 1923
(rafter stating the facts). The first assignment of error is that the court erred in refusing to allow the defendant’s wife to testify in his behalf as to the circumstances attending the deposit of the &140 with her. The general rule is that the wife is incomuetent to testify for her husband in a criminal case. Padgett v. State, 125 Ark. 471" date_filed="1916-10-23" court="Ark." case_name="Padgett v. State">125 Ark. 471.
In Christian & Taylor v. Fancher, 151 Ark. 102" date_filed="1921-12-12" court="Ark." case_name="Christian & Taylor v. Fancher">151 Ark. 102, the court held that the act of the Legislature enfranchising women has not changed the status of a married woman so as to render her competent to testify in her husband’s behalf. This rule applies to criminal as well as civil proceedings, except that, under § 3125 of Crawford & Moses"' Digest, the wife may testify against the husband in cases in which an injury has been done by him against her person or property. Therefore this assignment of error is not well, taken.
It is next insisted that the court erred in giving instruction No. 5, which reads as follows: “5. I charge you further that, under the law, the defendant is a competent witness in his own behalf, and you should take his testimony and consider it in the same manner as you do the testimony of any other witness in this case. You are not blindly to receive a fact as true simply because the defendant says it is true, but you should take his testimony and weigh it in connection with all the other evidence and circumstances in this case, and determine whether his statements are true and made in good faith, or whether they are made for the purpose of avoiding a conviction at your hands. In considering the degree of credit to be given it, you may take into consideration the defendant’s appearance on the witness stand while testifying, the reasonableness or unreasonableness of his statements, his candor or lack of candor, and his interest in the result of your verdict.”
It is the duty of the court to instruct the jury in the rules of law by which the testimony is weighed and its credibility tested. The jury are the exclusive judges of the weight of such testimony, and the court has no right, directly or indirectly, to express an opinion on the weight to be given to the testimony. While it has been said an instruction on this point may be drawn in more apt language, still it has been held that an instruction in substantially the same language is not erroneous. Hamilton v. State, 62 Ark. 543" date_filed="1896-07-08" court="Ark." case_name="Hamilton v. State">62 Ark. 543, and Whitener v. State, 120 Ark. 30" date_filed="1915-07-05" court="Ark." case_name="Whitener v. State">120 Ark. 30.
The next assignment of error is that the court erred in refusing to give instruction No. 2 at the request of the defendant. The instruction reads as follows:
“Mr. Covington: I want to ask the court to instruct the jury that, if they find from the evidence in this case that the defendant, Lighter, acting as the agent of Nina Seals, secured the signature of his wife to the appeal bond of the husband of Nina Seals, and Nina Seals deposited with him the sum of one hundred and forty dollars to secure his wife against loss by reason of her having signed the bond, and that the one hundred and forty dollars was turned over to her, and she has it now, it would be their duty to acquit the defendant in this ease. ”
It is first claimed by the State that the matters embraced in this instruction were covered by 1-a given by the court. This instruction reads as follows:
“If you find from the evidence, beyond a reasonable doubt, that the defendant, J. D. Lighter, in the Fort Smith District of Sebastian County, Arkansas, within three years before the finding of the indictment in this case, being then and there over the age of sixteen years, and being then and there the bailee, and having then and there in his hands and possession, as such bailee of the said Nina Seals, one hundred and forty dollars in gold, silver and paper money, of the value of one hundred and forty dollars, the property of Nina Seals as aforesaid, did unlawfully, fraudulently and feloniously make away with, embezzle and convert to his own use the said one hundred and forty dollars, without the consent of the said Nina Seals — if you find these facts from the evidence, beyond a reasonable doubt, it would be your duty to convict the defendant.”
A comparison of the two instructions will show that the instruction given by the court is entirely general in its terms, and does not cover the particular theory of the defendant relied upon by him for a reversal of the judgment.
While this court has uniformly held that it is not necessary to repeat instructions where the point involved is already embraced in the instructions given, it is equally well settled that it is the duty of the court to give instructions presenting the defendant’s side of the case, if there is evidence to support it and the defendant requests a proper instruction. This rule is elementary, and in the application of it we are of the opinion that the court ¿rred in refusing to give instruction No. 2 asked by the defendant. The instruction was correct in form, and presented the defendant’s theory of the case, and should have been given.
If the testimony of the defendant was true, the money was deposited by him with his wife for the purpose of getting her to sign the bail bond of Lured Seals, and Nina Seals knew this was the object to be accomplished when she delivered the money to the defendant. If the money was delivered to the defendant’s wife for that purpose, and is still held by her under the original agreement, the defendant is not guilty of embezzlement, and had a right to have his theory of the case submitted by instruction No. 2 as requested by him.
It follows that, for the error in refusing to give instruction No. 2 asked by the defendant, the judgment must be reversed, and the cause will be remanded for a new trial.