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er the relationship of any of the witnesses to the defendant or the
complaining witness may have influenced them to swerve from the
truth.^® But in other jurisdictions it is held that, while it is proper
to instruct that, in weighing the testimony of a defendant in a criminal
case, the jury may consider his peculiar situation and relationship to
the case, the rule cannot be extended beyond the defendant, so as to in-
clude his relatives.*® In Texas, where the province of the jury is
perhaps more jealously guarded than in almost any other jurisdiction,
an instruction, framed in general terms, that the jury, in estimating the
credibility of the testimony, may consider the intelligence and ap-
parent prejudice, if any, of the witnesses, has been held not erroneous,
as calculated to call the attention of the jury to the interest of relatives
or of the wife of defendant testifying in the case.*®

§ 20. Testimony of detectives and informers
Necessity and sufficiency of instructions, see post, § 161.

The credibility of the testimony of detectives employed to discover
violations of the law is for the jury,*^ and while in some jurisdictions
it is held that the giving of instructions as to the caution to be ob-
served in weighing testimony of private detectives or persons employed
to find evidence is based upon rules of practice rather than of law,
and rests largely in the discretion of the trial judge,** the general rule
is that it is error to instruct, and proper to refuse to instruct, because
invading the province of the jury, that the testimony of police officers



stated to be that, where defendant's
wife is a witness in his behalf, it is
error to charge that the Jury should
scrutinize carefully her evidence, and,
on account of her interest in the
event, receive her testimony with
grains of allowance, without a further
charge that, if they believe her tes-
timony to be true, It should be given
full credit. State v. Collins, 118 N. C.
1203, 24 S. E. 118.

87 State V. Parker, 39 Mo. App. 116.

8 8 state V. Hogard, 12 Mhin. 293
(Gil. 191).

In Missouri, in an early case it
was held that, under statutory provi-
sions prohibiting the court in a crimi-
nal case from commenting on the evi-
dence, and making the accused or his
wife competent witnesses, but allow-
ing the fact of their relation to the



case to be shown tor the purpose of
affecting their credibility, the court
might instruct the jury in weighing
testimony of defendant's wife to con-
sider the fact of her relationship to
hhn. State v. Young, 99 Mo. 666, 12
S. W. 879.

89 People V. Shattuck, 109 Cal. 673,
42 P. 315 ; People v. Hertz, 105 Cal.
660, 39 P. 32.

Earlier deeisioiis In California
holding contrary to the text. People
V. Wong Ah Foo, 69 Cal. 180, 10 P.
375, have been overruled.

40McGrath v. State, 35 Tex, App.
413, 34 S. W. 127 ; Cockerell v. State,
32 Tex. Cr. R. 585, 25 S. W. 421.

41 Baumgartner v. State, 178 P. 30,
20 Ariz. 157.

4 2 O'Grady t. People, 95 P. 346, 42
Colo. 312.



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35



CREDIBILITT OP WITNESSES AS A JUBT QUESTION



§21



and professional detectives ** or informers is to be received with cau-
tion, or great caution/* and, on the other hand, an instruction that the
jury is not authorized to disregard testimony of a witness merely .be-
cause he is employed as a detective, but must give the testimony of such
witness the same credence as that of any other witness, unless they
believe from the testimony that such witness has knowingly and cor-
ruptly sworn falsely to a material fact, is erroneous, as invading the
province of the jury.*'

§ 21. Testimony of accomplices and codefendants in criminal cases

On conflicting evidence, the court should leave the question of

whether a witness is an accomplice to the jury;** but, where the

facts concerning the connection of a witness with the oflfense charged



48 Oal. People v. ttndolph, 153 P.
721, 28 CaL App. 683.

Oa. Lynn v. State, 79 S. E. 29, 140
Ga. 387.

ni. People V. Dressen, 158 lU. App.
139; Hronek v. People, 134 111. 139,
24 N. B. 861, 23 Am. St Rep. 652.
. Mo. State v. KimmeU, 137 S. W.
329, 156 Mo. App. 461; State v. Ken-
nett, 132 S. W. 286, 151 Mo. App. 637 ;
State V. Haines, 107 S. W. 36, 128
Mo. App. 245 ; State v. OUphant, 107
S. W. 32, 128 Mo. App. 252.

Okl, Remer v. State, 109 P. 247, 3
Okl. Or. 706.

£k O. State v. Bennett, 40 S. 0.
308, 18 S. E. 886.

Va. Robinson v. Commonwealtli,
87 S. B. 553, 118 Va. 785.

InBtraotions objeotionable with-
in nde. An Instruction that police
officers and detectives had testified,
and that In weighing their testimony
greater care should be used by the
jury as to* testimony of persons in-
terested In or employed to find evi-
dence against the accused than In the
ease of other witnesses, because of
the unavoidable tendency and bias of
such persons to construe everything
as evidence against accused, and dis-
regard everything not tending to sup-
port their preconceived opinions.
State V. Paisley, 92 P. 566, 36 Mont
237.

In Nebraska, however, an instruc-
tion informing the Jury as to the
weight to be given the' evidence of de-
tectives, and stating that greater care
should be used than in other cases,



but that it should not be disregarded
entirely and that the jury are the sole
Judges of the credibility of all the
witnesses, is not erroneous as invad-
ing the province of the Jury. Bverson
V. State, 93 N. W. 394, 4 Neb. (Unof.)
109.

4* State V. Wisnewski, 102 N. W.
883, 13 N. D. 649; State v. Hoxsle,
15 R. I. 1, 22 Ati. 1059.

Testimony of ^'spotters/* It is
proper to refuse an instruction which
characterizes a witness as a "spotter,"
and which tells the Jury to take his
testimony with extreme care and sus-
picion, when there is nothing in the
conduct or demeanor of such witness
to reflect unfavorably upon his cred-
ibility, except his admission that he
made a purchase of intoxicating liq-
uor from one reputed to be engaged In
the illegal sale thereof, intending, if
called upon, to testify thereto. State
V. Keys, 4 Kan. App. 14, 45 P. 727.

*5 Pederre v. State, 54 So. 721, 99
Miss. 171.

*6 Ala. Horn v. State, 72 So. 768,

15 Ala. App. 213; Newsum v. State,
65 So. 87, 10 Ala. App. 124.

Ark. Spencer v. State, 194 S. W.
863, 128 Ark. 452.

Oal. People v. Truax, 158 P. 510,
30 Cal. App. 471; People v. Coffey,
119 P. 901, 161 Cal. 433, 39 L. R. A.
(N. S.) 704; People v. Bunkers, 84
P. 364, 2 Cal. App. 197, rehearing de-
nied (Sup.) 84 P. 370, 2 Cal. App. 197;
People V. Compton, 56 P. 44, 123 Cal.
403.

Ga. Curtis v. State, 85 S. E. 980,

16 Ga. App. 678 ; Hays v. State, 72 S.



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§21



INSTRUCTIONS TO JUEIBS



are not in dispute, the court may, or should, instruct that he is or is
not an accomplice.*-^

As in the case of other witnesses, the general rule is that the jury
are the exclusive judges of the credibility of accomplices testifying as
witnesses,*® and it is usually error to instruct and proper to refuse to



E. 286, 9 Ga. App. 829; Hargrove t.
State, 54 S. E. ;64, 125 Ga. 270.

Idaho. State v. Grant, 140 P. 959,
26 Idaho, 189.

Ky. Elmendprf v. Commonwealth,
188 S. W. 483, 171 Ky. 410; Smith v.
CJommonwealth, 146 S. W. 4, 148 Ky.
60.

MaM. Commonwealth v. Glover,
111 Mass. 395; Same v. Ford, Id.
394; Same v. Elliot, 110 Mass. 104.

N. M. State v. WiUiams, 161 P.
334, 22 N. M. 337.

N. Y. People v. Richardson, 118 N.
E. 514, 222 N. Y. 103, affirming Judg-
ment 165 N. Y. S. 1104, 178 App. Div.
925; People v. Swersfcy, 111 N. E.
212, 216 N. Y. 471, modifying judg-
ment 153 N. Y. S. 1134, 168 App. Div.
941; People v. Wood, 157 N. Y. S.
541, 93 Misc. Rep. 701; People v.
Katz, 103 N. E. 305, 209 N. Y. 311,
affirming Judgment 139 N. Y. S. 137.
154 App. Div. 44; People v. EUiott,
140 N. Y. S. 553, 155 App. Div. 486.

N, D. State v. Kellar, 80 N. W.
476, 8 N. D. 563, 73 Am. St. R^. 776.

Okl. Cudjoe v. State, 154 P. 500,
L. R. A. 1916F, 1251.

Tenn. Hicks v. State, 149 S. W.
1055, 126 Tenn. 359.

Tex. McCormick v. State, 216 S.
W. 871, 86 Tex. Cr. R^ 366; Melton
V. State, 197 S. W. 715, 81 Tex. Cr.
R. 604; Savage v. State, 170 S. W.
730, 75 Tex. Cr. R. 213 ; Goldstein v.
State, 166 S. W. 149, 73 Tex. Cr. R.
558; Hyde v. State, 165 S. W. 195,
73 Tex. Cr. R. 452; Foster v. State,
150 S. W. 936, 68 Tex. Cr. R. 38;
Franklin v. State, 140 S. W. 1091, 63
Tex. Cr. R. 438; Brown v. State 125
S. W. 915, 58 Tex. Cr. R. 336; Pace
v. State, 124 S. W. 949, 58 Tex. Cr.
R. 90; Davis v. State, 117 S. W. 159,
55 Tex. Cr. R. 495 ; Wyatt v. State.
114 S. W. 812, 55 Tex. Cr. R. 73;
Lightfoot V. State (Cr. App.) 78 S. W.
1075; McAUster v. State, 76 S. W.
760, 45 Tex. Cr. R. 258, 108 Am. St.
Rep. 958 ; Preston v. State, 53 S. W.



127. 41 Tex. Cr. R. 300, rehearing de-
nied 53 S. W. 881, 41 Tex. Cr. R. 300;
Clay V. State, 51 S. W. 212, 40 Tex.
Cr. R. 556; Ransom v. State (Cr.
App.) 49 S. W. 582; Preston v. State,
48 S. W. 581, 40 Tex. Cr. R. 72 ; Rlos
V. State (Cr. App.) 48 S. W. 505 ; Han-
kins V. State (Cr. App.) 47 S. W. 992 ;
DelaVan v. State (Cr. App.) 29 S. W.
385; Williams v. State, 33 Tex. Cr.
R. 128, 25 S. W. 629, 47 Am. St Rep.
21; CroweU v. State, 24 Tex. App. 404,
6 S. W. 318.

Wi«. Porath v. State, 90 Wis. 527.
63 N. W. 1061, 48 Am. St. Rep. 954.

4TCal. People v. Coffey, 119 P,
901, 161 Cal. i33, 39 U R. A. (N..S.)
704.

Iowa. State V. Stalker, 151 N. W.
527, 169 Iowa, 896, L. R. A. 1915E,
1222.

N. M. Territory v. West, ,99 P.
343, 14 N. M. 546.

Okl. Wiley v. State (Cr. App.) 191
P. 1057; Moore v. State, 170 P. 519.
14 Okl. Cr. 292,

R. I. State v. Riddell, 96 A. S31,
reargument denied 97 A. 15.

Tex. Smalley v. State, 127 S. W.
225, 59 Tex. Cr. R. 95; Spencer v.
State, 106 S. W. 386, 52 Tex. Cr. R.
289 ; Swan v. State (Cr. App.) 76 &
W. 464.

48 u. 8, (C. C. Tex.) United States
T. Reeves, 38 F. 404.

Cal. People v. Gibson, 53 Cal. 601.

Colo. Toilifson v. People, 112 P.
794, 49 Colo. 219.

Del. State v. Ryan, 75 A. 869, 1
Boyce, 223 ; State v. Curdy, 75 A. 868,
1 Boyce, 208.

Kan. State v. McDonald, 193 P.
179, 107 Kan. 568.

Me. State v. Utchfield, 58 Me. 267.

Hich. People v. Dumas, 125 N. W.
766, 161 Mich. 45 ; People v. Jenness,
5 Mich. 305.

MiM. Ost)orn v. State, 55 So. 52, 99
Miss. 410, overruling the suggestion of
error 54 So. 450.



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87



CEEDIBIUTY OP WITNESSES AS A JURY QUESTION



22



instruct that the testimony of accomplices,** or of the wife of an ac-
complice/® is to be viewed with distrust, or received with great cau-
tion, or is worthless," and where corroboration of the testimony of
an accomplice is not indispensable to warrant the jury in basing a
verdict thereon, an instruction that they ought not to convict on the
uncorroborated evidence of an accomplice is erroneous,^* and properly
refused.'* On the other hand, it is proper to refuse to charge that
the testimony of an accomplice is not to be given less weight than
that of other witnesses,"* and it is error to charge that the jury are
bound to credit the testimony of an accomplice, if corroborated.'^*

The jury may be told, in a criminal case, that they may take into
consideration the fact that a witness is a codefendant.*^*

§ 22. E£Fect of false testimony of witness on credibility of part of

testimony not shown to be false

Necessity and correctness of instmctions as statements of legal propositions,
see post, IS 17^180. %

The fact that a witness has knowingly testified falsely to material
facts does not require the jury to disbelieve his testimony on other
matters,"^ and therefore it invades the province of the jury to instruct



Mo. State v. Faulkner, 84 8. W.
967, 185 Mo. 673.

N. T, Maine v. People, 9 Hun, 118.

W. Ym. State v. BetsaU, 11 W.
Va. 703.

"WU. Mack V. State, 4 N. W. 449,
48 Wis. 271.

40 People V. Hoosler, 142 P. 514. 24
Cal. App. 746; People v. Moran, 77 P.
777, 144 Cal. 48 ; People v. Wardrip,
74 P. 744. 141 Cal. 229; People v.
O'Brien, 96 Cal. 171, 31 Pac. 45;
State V. Bobbltt, 114 S. W. 511. 215
Mo. 10. Contra, People v. Costello, 1
Denio, 83.

Ib. the federal eonrts, the court
cannot declare as matter of law. that
the declarations of self-confessed ac-
complices and members of a con-
spiracy are unworthy of belief unless
corroborated. United States v. Mc-
Kee, Fed. Cas. No. 15,685, 3 Dm. 546.
' fio Crittenden v. State, 32 So. 273,
134 Ala. 145.

81 People V. WaUin, 22 N. W. 15,
55 Mich. 497.

6» Richardson v. United States (O.
0. A. Pa.) 181 F. 1, 104 C. C. A. 69;



State V. Hare, 100 N. B. 825, 87 Ohio
St 204 ; State v. Sowell, 67 S. E. 316,
85 S. C. 278; State v. Musgrave, 28
S. E. 813, 43 W. Va. 672. Contra.
Abaly v. State, 158 N. W. 308, 163
Wla 609.

8 8 People V. Schweitzer, 23 Mich.
801.

84 Hicks V. State, 26 So. 337, 123
Ala. 15.

88 People V. Eckert. 16 Cal. 110;
Hamilton v. People, 29 Mich. 173.

»« Mathews v. State, 100 Ala. 46.
14 So. 359 ; State v. Hing. 16 Nev. 307.

87 AU. Grimes v. State. 63 Ala.
166.

Cal. People v. Hicks, 53 Cal. 354.

ni. Pennsylvania Co. v. Conlan,
101 lU. 93.

I«a. State v. Washington, 31 So.
638. 107 La. 298.

Me. Parsons v. Huff, 41 Me. 410,

Mam. Commonwealth v. Clune,
162 Mass. 206. 38 N. E. 435.

Minn. Schuek v. Hagar, 24 Minn.
339

Miss. FInley v. Hunt, 56 Miss. 221.

Mo. State v. Anderson, 19 Mo. 241.



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§22



INSTRUCTIONS TO JURIES



38



that the jury ought to, should, or must, disregard the entire testimony
of a witness whom they may believe to have so spoken falsely as to a
material fact, imless he is corroborated by other reliable evidence,"*
and such an instruction is properly refused.''® But the jury may be
told in a proper case that if they believe, from all the circumstances, a
witness to have willfully testified falsely on a material point, they
should consider such fact in determining the weight to be given to
his evidence,®* and in some jurisdictions it is proper, in such case, to
tell the jury that they may disregard the entire testimony of such
witness.** In one jurisdiction, however, an instruction that the jury
may disregard the entire testimony of a witness who has willfully



Neb. Neal v. State, 175 N. W. 669,
104 Neb. 56.

N. H. Senter v. Carr, 15 N. H.
351.

N. Y. People V. Kerr (O. & #.) 6
N. Y. S. 674.

Wi«. Mercer v. Wright, 3 Wis. 645.

s8 Ala. Mills v. State, 55 So. 331,
1 Ala. App. 76.

lU. Hoge V. People, 117 111. 35, 6
N. E. 796; Ruddock v. Belton, 7 111.
App. 517 ; Otmer v. People, 76 111. 149.

Iowa. Judge v. Jordan, 81 Iowa,
519, 46 N. W. 1077.

Kan. Higbee v. McMillan, 18 Kan.
133; State v. Potter, 16 Kan. 80;
Shellabarger v. Nafus, 15 Kan. 547.

Ky. Hall v. Renfro, 3 Mete. 51;
Letton V. Young, 2 Mete. 558.

Mimm, Spivey v. State, 58 Miss.
858

Mo. State v. Gushing, 29 Mo. 215.

N. Y. Dunn v. People, 29 N. Y.
523, 86 Am. Dec. 319.

N. C. State v. Williams, 47 N. C.
257.

Pa. Commonwealth v. leradi, 64 A.
889. 216 Pa. 87. 116 Am. St. Rep. 761.

Tenn. Frierson v. Galbraith, 12
I.ea, 129.

W. Va. State v. Thompson, 21 W.
Va. 741.

In New York, early cases appar-
ently in opposition to the rule of the
text Roth V. Wells, 29 N. Y. 471 ; Peo-
ple V. Petmecky, 2 N. Y. Cr. R. 450
have been explained, answered, or
overruled by the later cases.

59 Butler V. State, 77 So. 72, 16
Ala. App. 234 ; Saulsberry v. State, 59



So. 476, 178 Ala. 16; Edmondson v.
State, 59 So. 229. 4 Ala. App. 196;
Lowe V. State, 88 Ala. 8, 7 So. 97;
Slayton v. State, 94 S. W. 901, 50 Tex.
Cr. R. 62.

60 Bowles V. Glasgow, 2 Posey, Un-
rep. Oas. 714.

01 Ala. Byrd v. State, 84 So. 777,
17 Ala. App. 301; Barker v. Tennessee
Coal, Iron & R. Co., 66 So. 600, 189
Ala. 579; Seaboard Air Lino Ry. Co.
v. Taylor, 64 So. 187, 9 Ala. App. 628;
Kress v. Lawrence, 47 So. 574, 158
Ala. 652; Sanders v. Davis, 44 So.
979, 153 Ala. 375; Alabama Steel &
Wire Co. v. Griffin, 42 So. 1034, 149
Ala. 423 ; Jordan v. State, 81 Ala. 20,
1 So. 577.

Cal. Whitaker v. California Door
Co., 95 P. 910, 7 Cal. App. 757.

Colo. Denver & R. G. R. Co. v.
Warring, 86 P. 305, 37 Colo. 122.

Mo. Myers v. City of Independence
(Sup.) 189 S. W. 816; Cohen v. St.
Louis Merchants' Bridge Terminal Ry.
Co., 181 S. W. 1080, 193 Mo. App. 69;
Price V. Hiram Lloyd Bldg. & Const.
Co.. 177 S. W. 700, 191 Mo. App. 395 ;
Hall V. Manufacturers' Coal & Coke
Co., 168 S. W. 927, 260 Mo. 351, Ann.
Cas. 1916C, 375; State v. Martin, 124
Mo. 514, 28 S. W. 12 ; State v. Mounce.
106 Mo. 226, 17 S. W. 226, following
State V. Vansant, 80 Mo. 67.

Neb. Atkins v. Gladwish, 27 Neb.
841, 44 N. W. 37.

Ohio. Dye v. Scott, 35 Ohio St
194, 35 Am. Rep. 604.

Okl. Strickler v. Gitchel, 78 P. 94,
14 Okl. 523.



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39 OREDIBILITT OP WITNESSES AS A JURY QUESTION § 23

sworn falsely to a material fact is held to be erroneous,** as suggesting
to the jury the weight to be attached to a particular part of the evi-
dence/' and in other jurisdictions such an instruction should be
hedged around with certain qualifications, as will be shown in a sub-
sequent chapter.'*

Under some statutes, on a proper occasion, the court may instruct
that a witness false in one part of his testimony is to be distrusted in
another,*' and under such a statute an instruction that, if the jury is
convinced that a witness has willfully stated what is untrue with intent
to deceive, the jury must treat all his testimony with distrust and
suspicion, and reject it unless they are convinced that, notwithstanding
his base character, he has in other respects sworn to the truth, may
not be objectionable as withdrawing the credibility of the witness
from the jury." An instruction, however, which makes it tlie un-
qualified duty of the jury to distrust the entire testimony of a witness
because of such a false statement is erroileous.'^

While the maxim, "Falsus in uno, falsus in omnibus," should not
be laid down as a rule of law for the jury in testing the credibility of
the witnesses, the doing so may not be material error, when viewed
in connection with the entire instruction."

§ 23. Determinatian of question whether witness has made contra-
dictory statements

As a general rule, whether a part of the testimony of a witness is at
variance with other parts, or with his statements made out of court,
or on a former trial, should be left to the jury,'* and it is not proper
for the court to instruct that certain testimony of a witness qualifies
what he has already said,^' nor should the jury be told to reconcile,
if possible, the conflicting statements of a witness,^^ and where a wit-
ness attempts to explain contradictory statements the court should
not so instruct as apparently to approve such explanation.^*

e»Cook V. Commonwealtli, 4 Ky. «8 state v. Uttlejohn, 33 S. C. 599,

Law Rep. 31. 11 S. E. 638.

Oontra, Rutherford v. CJommon- «• Pound v. State, 43 Ga. 88 ; State

wealth, 2 Mete. 387. v. Davis (Mo.) 217 S. W. 87 ; Wendt

68 Barnett v. Commonwealth. 84 Ky. ^'- ^^^l^^ If N- hJ^'^^^% ^' f ^lo'
ddQ 1 Q w 799 reversing 63 Hun. 627, 17 ^. Y. S. 748:

^ , H 179, 180. jy 55Q^ jg ^j^ (^^g ^Qo^ judgment re-

«5 People V. Votaw, 177 P. 485 38 versed on rehearing 124 N. W. 713,

Cal. App. 714 ; State v. Connors, 94 P. 04 g d 533^

199. 37 Mont 15. 70 Beard v. Kirk, 11 N. H. 397.

« 6 People V. Kelly, 79 P. 846, 146 n isly v. Illinois Cent. R. Co.. 88

Cal. 119. Wis. 453, 60 N. W. 794.

«7 People V. Delucchi, 118 P. 935, 17 72 Potter v. State, 45 S. E. 37, 117

Cal. App. 96. Ga. 693.



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§24



INSTBUCTI0N8 TO JURIBS



40



§ 24. Effect of contradictory statements of witness
Necessity and sufficiency of instructions, see post, S| 18i| 182.

It is for the jury to say whether the credibility of a witness has been
impaired by the making of contradictory statements/* and instructions
which tend to withdraw the fact of such contradiction from their
consideration/* or which tell the jury that under certain circumstances
such fact will not operate to impair the credibility of a witness/*^ or
which minimize its effect, as by telling the jury that evidence of such
contradiction is generally worthless, or of little weight, are erroneous/*
Thus an instruction that the normal weight of testimony as to contradic-
tory statements previously made out of court by a witness is in all
cases slight invades the province of the jury.''^ On the other hand, it
is equally improper to instruct that proof of having made contradictory
statements should weigh heavily against a witness,^* and it is proper
to refuse to instruct that the testimony of such a witness should be
received with great distrust.'^*

In accordance with the general principle stated supra, it is proper
to tell the jury that, in weighing the testimony of a witness, they may,
or should, consider the fact that he has made inconsistent statements,*^
and in one jurisdiction it is held not error to instruct that the jury
may disregard the entire testimony of a witness who has made such
statements as to a material fact, unless he is corroborated by other



78 u. 8. (C. C. A. Iowa) Chicago G.
W. Ry. Co. V. Price, 97 F. 423, 38 C.
C. A 239.

Ala. Smith v. State, 92 Ala. 69, 9
So. 622.

Cal. People v. Avena, 168 P. 148.
34 Cal. App. 500; People v. Chober,
157 P. 633, 29 CaL App. 627 ; People
V. Preston, 127 P. 660, 19 Cal. App.
675.

111. Raymond v. People, 80 N. B.
996, 226 in. 433; Chicago City Ry.
Co. V. Tuohy, 63 N. B. 997, 196 111. 410,
58 L. R. A. 270.

Mich. Piehl V. Piehl, 101 N. W.
628, 138 Mich. 515.

Mo. Cravens v. Hunter, 87 Mo.
App. 456.

Neb. Dixon v. State, 46 Neb. 298.
64 N. W. 961.

N. Y. Festa v. New York City Ry.
Co. (Sup.) 95 N. Y. S. 595.

Pa. ' Platz V. McKean Tp., 36 A.
136. 178 Pa. 601.

Tex. Galveston, H. & S. A. Ry. Co.
V. Butshek, 78 S. W. 740, 34 Tex. dv.
App. 194.



T4 Newberry v. State^ 26 Fla. 334, 8
So. 445.
Ol&arge as to presuniptioiis. In

a prosecution for homicide, a charge
that, even though defendant may have
made statements as to manner of
death different from his testimony at
the trial, there is no presumption of
law that his testimony is untrue, is
properly refused. Kent v. State, 43
So. 773, 53 Fla. 51.

75 State V. Johnagen, 53 Iowa, 250,
5 N. W. 176 ; Flege v. State, 133 N.
W. 431, 90 Neb. 390.

re Warder v. Fisher, 48 Wis. 338,
4 N. W. 470.

77 Bradley v. Gorham. 58 A. 698, 77
Conn. 211, 66 L. R. A. 934.

78 Paul v. State, 100 Ala. 136, 14
So. 634 ; Barr v. Hack, 46 Iowa. 308.

7»Tarbell v. Forbes, 58 N. E. 873,
177 Mass. 238.

80 Stevens v. Leonard, 66 N. E. 27,
154 Ind. 67, 77 Am. St. Rep. 446;
Smith V. State, 142 Ind. 288, 41 N.
E. 595.



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41 CEEDIBILITY OF WITNESSES AS A JURY QUESTION § 26

credible witnesses,®^ but in other jurisdictions such an instruction is
held to invade the province of the jury.'*

Mandatory instructions that the jury disregard the entire testimony
of a witness who has made contradictory statements are generally
held to be erroneous,'* and where a party's testimony relates to a
subject as to which the burden of proof is on the opposite party, seem-
ing inconsistency therein will not ordinarily warrant the court in in-
structing the jury to reject those parts of it in his favor, and to base
their verdict on those parts which seem to make against him.'*

§ 25. Station in life of witness .

Ordinarily it is the safer practice to refrain from speaking of the
particular station in life filled by a witness," and it is error to charge
that the testimony of a witness derives additional weight from the
fact that he happens to be a clerg)mian." An instruction, however,
that a party testifying as a witness is a reputable lawyer means only
that he is a regular lawyer, and is not objectionable as a charge on
his character,'^ and in jurisdictions where the court may comment
on the evidence it is not error for the court to characterize a witness
as a well-known and capable member of the bar.*'

§ 26. Appearance and demeanor of witness

The court ought not to state to the jury its estimate of the appear-
ance and manner of a witness,'* but it is not error to tell the jury that
they may consider the demeanor of a witness while on the stand and
his manner of testifying in judging of his credibility.** The rule is
otherwise as to the demeanor and conduct of a witness while off the
stand,** these being no part of the evidence.**

8 5 White V. New York, Chicago & »* Smith v. Jackson Tp., 26 Pa.



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