Vails v. State, 48 So. 725

Vails v. State

48 So. 725 | Miss. | 1908

Whitfield, C. J.,

delivered the opinion of the court.

On the testimony in this case, not only were the jury welt warranted in rendering the verdict which they did render, but it does not seem to us at all probable that any other verdict could be rendered on a new trial. We think, therefore, the right result, so far as the testimony is concerned, has manifestly been reached.

The chief contention of/learned counsel for appellant is that the court committed error—reversible error—in giving the-fourth instruction for the state. That instruction is in the following words: “The court instructs the jury, for the state, that they are the sole and exclusive judges of the weight of the evidence and the credibility of the witnesses, and in determining the weight to be given to the testimony of each witness they may *369take into consideration the interest or tbe lack of interest, tbe reasonableness or the unreasonableness, of the testimony; and, if they believe from the evidence that any witness has wilfully sworn falsely to any material matter in this case, then the jury may disregard the whole testimony of such witness or witnesses, if they believe it untrue.” This instruction must be taken in connection with instruction number eight, given for the defendant: “The court instructs the jury, for the defendant, that the law makes the defendant a competent witness for himself, and permits him to testify in his own behalf, and his testimony you cannot arbitrarily, under your oath, disregard, simply because he is the defendant in the case; but it is the duty to consider Vails’ testimony, as you consider the testimony of any other witness in the case, and, if you have no other reason to disbelieve him as a witness than the fact that he 'is the defendant in the case, then it is your sworn duty to believe him, and believe that he spoke the truth, and if it is sufficient, in connection with the other testimony in the case, to raise in-your minds a reasonable doubt of his guilt, then you should promptly find him not guilty.” The objection urged to the fourth instruction is that it directly points out the defendant alone, and is therefore within the condemnation of various cases cited in the brief of learned counsel for appellant, especially the case of Buckley v. State, 62 Miss. 705.

We remark, first, that if there was any error in this fourth instruction given for the state on this point, it was certainly cured by the eighth instruction, just above set out, given for the defendant on the same point. It would be difficult, indeed, to frame an instruction on this point more favorable to the defendant than this said eighth instruction is. But, second, we remark that in nearly all the cases cited by appellant’s counsel the instruction condemned either directly referred to the defendant alone, ot by necessary implication, and in nearly all the cases the defendant was the only witness on his behalf in the ease. This last observation is true of the cases of Smith v. State, 90 *370Miss. 111, 43 South. 465, 122 Am. St Rep. 313, Gaines v. State, 48 South. 182, Wood v. State, 67 Miss. 575, 7 South. 495, and practically Glenn v. State, 64 Miss. 724, 2 South. 109, since in that case the defendant was the only person who made-a statement which he had denied under oath. In this case Lloyd, the brother-in-law of the defendant, testified in his behalf to nearly all the material facts. So that it is not true of this case, either that the defendant was the only witness testifying in his behalf, or that this instruction necessarily pointed to him and him alone. The instruction in the Buckley case, supra, which was condemned, was as follows: “It is true that under the laws of this state the defendant is a competent witness in his own behalf; but in weighing his testimony the jury should consider the interest he has in the result of the same, and they may disregard it altogether.” It is perfectly manifest that the difference between that instruction and the instruction in this case is as wide as the'distance between the poles.

There was not only no reversible error, but no error at all, in giving instruction No. four for the state. Wherefore the judgment is affirmed.