80 So. 636 | Miss. | 1918
delivered the opinion of the court.
On a former day of this term this cause was affirmed without a written opinion. Counsel for the appellant in a suggestion of error press the point that the following instruction granted the state constitutes reversible error. The instruction reads:
*225 “The court instructs the jury for the state that you are the sole judges of the weight of the testimony and the credibility of the witnesses, and in considering all the evidence in the case you may take into consideration the situation and location of the witnesses with reference to the scene of the difficulty, the motive each may have for testifying, and the interest any witness or witnesses may have in the result of the trial, and if, after considering all the evidence, you believe that any witness or witnesses have corruptly, wickedly, and knowingly testified falsely about any material fact in the case, you may disregard the testimony of said witness or witnesses altogether.”
The appellant was convicted of assault and battery with intent to kill and murder one Mary Stewart. The main facts are that appellant and Mary Stewart had an altercation in which the latter was seriously cut; and, according to the state’s proof, appellant was the aggressor. The prosecutrix says that she was gathering pine knote near her home, when appellant came along the road in a wagon, called her out to the roadside, jumped out of the wagon, and without excuse or provocation attacked witness with a pocketknife and inflicted some eleven wounds, which caused witness to be confined in her bed approximately thirty days. The main details of the fisrht were denied by appellant as a witness in her own Lohalf. There were no other eyewitnesses to the main details of the difficulty, but two other witnesses for the state testified they heard appellant call Mary Stewart out to the roadside and saw them in a conversation near appellant’s wagon. There is testimony for the state that no weapons were found upon the injured woman at the time of the difficulty.
In addition to the defendant as a witness in her own behalf, two witnesses testified that Mary Stewart made certain threats against the appellant, but the alleged threats were denied by Mary. One of the witnesses for the defendant was Jim Murphy, the father of appellant.
“The court instructs the jury that the defendant is a competent witness in. her own behalf, and her testimony is entitled to the same consideration as that of any other witness.”
It is earnestly insisted that the quoted instruction for the state singled out the defendant as a witness in her own behalf in violation of the rule announced in many previous decisions of this court, fully cited in the briefs, which condemn any instruction for the state which points out. the interest which a defendant has in her own case and which is calculated to discount the force and effect of the defendant’s testimony. It is also contended that this instruction is upon the weight of the evidence.
This is not a case where the defendant was the sole witness for the defense. The instruction here criticized did not point directly to the defendant and could be condemned only upon the ground that it artfully suggested the interest of the defendant and did by indirection what could not lawfully be done directly. In the leading case on the point argued (Buckley v. State 62 Miss. 705), the word “defendant” was used in the instruction, and the jury told that they could consider his interest in the result of the trial and might disregard his testimony altogether. Many of the other cases cited are cases where the defendant was the only witness to the main or controverted facts at issue, and the language employed was such as necessarily pointed to the defendant alone. The doctrine announced in Buckley v. State is perfectly sound and has been reaffirmed on many occasions, but this doctrine has its proper and reasonable limitations. The language of the instruction here under review is general and states more or less abstract propositions. We cannot say that it is good practice for the court, as in this instruction, to direct the attention of the jury to “the
“If there is any error in this fourth instruction given for the state on this point, it was certainly cured by the eighth instruction, . . . given for the defendant on the same point.”
Instruction No. 2 for the defendant was indeed a stronger expression than the defendant was entitled to. In it. the court tells the jury that the defendant’s “testimony is entitled to the same consideration as that of any other witness.” This instruction is the reverse of the situation presented in the Buckley Case. Here the court singles out the testimony of the defendant in her own behalf and comes nearer telling the jury that her testimony is entitled to the same degree of veracity as that of any other witness in the case. The granting of any instruction, either for the state or the defendant which in express language compares one witness with any other witness in the case, is of doubtful propriety
So we say that, conceding for the purposes of discussion that there was any error at all in the state’s instruction, this error was cured by the very liberal instruction given the defendant, and, when the jury read all the instructions together, they certainly had no doubt about their right, indeed their duty, to consider carefully the testimony of the defendant as a witness in her own behalf.
Upon the main point argued, that the state’s instruction was erroneous, we wish to say further that Jim Murphy, the father of the defendant, and Silas G-rant, who appears to have lived with Jim Murphy, both testified for the defense. That portion of the instruction, then, which directed the attention of the jury to the motive and interest of any witnesses might reasonably have been construed as having reference to these two witnesses.
We unhesitatingly conclude, therefore, that the state’s instruction does not constitute reversible error; and,
Overruled.
