In instruction No. 9 the jury was told that "in determining the weight to be given the testimony of the witnesses you are authorized to consider their relationship to the parties, if any, their interest, if any, in the result of this case, their temper, feeling or bias," etc.; and in No. 10 it was instructed that "in determining the degree of credibility that shall be accorded to his testimony" (defendant's) "the jury have a right to take into consideration *Page 572 the fact that he is interested in the result of the prosecution as well as his demeanor and conduct upon the witness stand," etc. R.L. 1925, section 2426, which has been the law in this jurisdiction at least since 1892, provides as follows: "Jury exclusive judges of facts. The jury shall in all cases be the exclusive judges of the facts in suits tried before them, and the judge presiding at any jury trial * * * shall in no case comment upon the character, quality, strength, weakness or credibility of any evidence submitted or upon the character, attitude, appearance, motive or reliability of any witness sworn in a cause." It is well settled that this provision applies in criminal cases as well as in civil cases. This command of the legislature was violated in the case at bar. The trial judge's reference to "the fact" that the defendant "is interested in the result of the prosecution" is a finding of fact and a comment thereon. It is true that it is a fact that was well known to all of the jurors. It must have been entirely obvious to them without any comment from the court that the defendant was deeply interested in the result of his trial. It was an entirely unnecessary comment. The law is undoubtedly that the jury is justified in any criminal case in taking into consideration the interest of the defendant in the trial but that law was sufficiently called to the attention of the jury when it was instructed generally as it was in instruction numbered 9. The mere fact that an instruction is unnecessary or is a comment upon an obvious fact would not justify a reversal of the verdict; but when, as in the case at bar, the instruction is in effect a singling out of the defendant for an adverse comment from the bench it becomes unfair to the defendant, although, of course, not so intended by the presiding judge, and is cause for a reversal and the granting of a new trial.
While the evidence in this case was sufficient to sustain *Page 573 a finding that it was the defendant who embezzled the moneys in question, it was also susceptible of a finding by the jury that it was not the defendant who pocketed the money but that it was one of the other employees of the same office. Any recital in detail of the evidence which to my mind justifies this view would necessarily be lengthy, owing to the peculiar nature of the case. Such a lengthy statement in a dissenting opinion cannot serve any useful purpose. It is sufficient to say that, in my opinion, there was evidence tending to show that it might have been Pahu, the clerk in charge of collections of water rates, or perhaps even some other clerk in the office, who embezzled the money. And in spite of all the evidence against him, the jurors, consistently with their oaths and their duty, might have found that the defendant's acts were consistent with his innocence. The defendant denied absolutely the taking of any moneys belonging to the government. There was no direct evidence that it was he who embezzled. The evidence against him was purely circumstantial. It was evidence of a nature that was difficult, at first hearing at least, to classify and weigh logically. In my study of the case, with many days and nights in which to pursue the study, I found it difficult to correctly understand the evidence and to give each bit of evidence what seemed to me to be its proper place and weight. Our jury system does not permit of the same degree of deliberation and consideration of evidence which is permitted to appellate judges. I do not know whether the defendant is guilty or not guilty and it is not within my province to make a finding on the point, although I have reached the conclusion that the evidence was sufficient to support a conviction. When it cannot properly be said that the evidence adduced did not permit of a finding that the defendant was not guilty and when it can properly be said that twelve jurors, acting with honesty and *Page 574 the desire to do their full duty to the community as well as to the defendant and within the limits of time ordinarily afforded for such decisions by them, could conscientiously have reported that the evidence did not satisfy them of the defendant's guilt beyond a reasonable doubt, — when, under these circumstances, the judge called the attention of the jury to a fact which might have led the defendant to testify falsely and at the same time failed to call to the jury's attention the fact that Pahu and other clerks were more or less under suspicion and had a somewhat similar interest in the result of the trial, it may well be that the words of the judge upon the one point and his silence upon the other had their influence upon the jury in choosing the clerk to be reported as guilty. In other words, the instruction cannot be said to have been harmless.
Some courts have, indeed, sustained similar instructions. In some, and perhaps most, of those cases there was no constitutional or statutory requirement that the jury should be the sole judge of the facts and no inhibition against the judge commenting on the evidence. I prefer the reasoning of other courts in disapproving of such an instruction under circumstances which constitute a singling out of the defendant for adverse comment.
In California, in a series of earlier cases, such an instruction was tolerated, later disapproved without reversal and subsequently disapproved with reversals. In People v. Boren,139 Cal. 210, 215, the court, while affirming the judgment, said: "It is difficult to logically attribute the giving of any instruction whatever on the subject of defendant's testimony to anything else than a purpose to expressly disparage a witness before a jury, the very thing that a court has no authority to do in view of our constitutional provision. Justice would be more surely accomplished if no such instruction were given and *Page 575 the credibility of the defendant were left entirely to the jury, as this court has often said." In People v. Maughs, 149 Cal. 253, 263, the court, after repeating its comments from People v. Boren, added: "Trial courts have been commended by this court when they have refused to give this instruction. * * * And after all this admonition, after all these cautions, the conclusion is forced upon us that when a trial judge does give this instruction to a jury, it can be with no other purpose than to throw his judicial weight into the scales against the defendant on trial before his court. For this reason, therefore, we think the time has come to say that in all future cases which shall arise, and where, after this warning, this instruction shall be given, this court will hold the giving of it to be so prejudicial to the rights of a defendant, secured to him by our constitution and laws, as to call for the reversal of any judgment which may be rendered against him." In Robertson v.Territory, 13 Ariz. 10, 11, the court said: "While the giving of this instruction was, therefore, not error on the part of the trial court we believe that in some respects it is an undesirable instruction to be given and we recommend to the district courts that its use be discontinued." In Erickson v. State, 14 Ariz. 253, 259, all of these being cases in which similar instructions were given, the court said: "Under the laws of Arizona, defendant may testify in his own behalf, and in doing so his testimony ought not to be singled out by the trial court in its instructions and commented upon. It is true that he is greatly interested in the result of the trial; but our observation is that often the witnesses for the prosecution are actuated by motives of revenge and hatred, and in their zeal exaggerate and color their testimony. A general instruction on the credibility of witnesses will better subserve the law and the ends of justice than to single out and in a way penalize any witness because his misfortunes *Page 576 or necessities compel him to testify in a court of justice." Motives of protection, on the part of witnesses for the prosecution, may well lead to the same zeal to exaggerate and color testimony.
Referring to the statement made in Robertson v. Territory,supra, that such an instruction was "undesirable," the court proceeded in the Erickson case: "Since the adoption of our constitution, we think we should go further and hold that such instruction is not only `undesirable,' but error. Section 12, article 6, constitution of Arizona is `Judges shall not charge juries with respect to matters of fact nor comment thereon, but shall declare the law.' Any instruction that directs the jury's attention particularly to the testimony of the defendant and authorizes them to consider its comparative weight, with an implication that its value is to be tested by a rule different from the rule applicable to the testimony of any other witness, is certainly a charge `with respect to matters of fact.'" Ib., 260.
In Hicks v. United States, 150 U.S. 442, 451, 452, the instruction owing to its circumstantiality was more objectionable than that now under consideration and yet in its essence it was an instruction that in weighing "the personal testimony of the accused" the jury should consider his interest in the case. "You are to consider his consequent motive growing out of that interest in passing upon the truthfulness or falsity of his statement," the jury was told inter alia. The Supreme Court of the United States in reviewing the trial upon a writ of error said: "It is not easy to say what effect this instruction had upon the jury. If this were the only objectionable language contained in the charge, we might hesitate in saying that it amounted to reversible error. It is not unusual to warn juries that they should be careful in giving effect to the testimony of accomplices; and, perhaps, *Page 577 a judge cannot be considered as going out of his province in giving a similar caution as to the testimony of the accused person." (In the federal courts the trial judges, in charging juries, are not under any such inhibition as is provided for in our statute against comments on the evidence.) "Still it must be remembered that men may testify truthfully, although their lives hang in the balance, and that the law, in its wisdom, has provided that the accused shall have the right to testify in his own behalf. Such a privilege would be a vain one if the judge, to whose lightest word the jury, properly enough, give a great weight, should intimate that the dreadful condition in which the accused finds himself should deprive his testimony of probability. The wise and humane provision of the law is that `the person charged shall, at his own request, but not otherwise, be a competent witness.' The policy of this enactment should not be defeated by hostile comments of the trial judge whose duty it is to give reasonable effect and force to the law." Ib., 451, 452. In State v. Hyder, 167 S.W. (Mo.) 524, 525, 526, the court, while affirming the judgment, commented unfavorably upon an instruction of this nature. The writer of the opinion said: "This form of instruction has been severely criticized by different members of this court in several cases. * * * Speaking for myself, I seriously doubt if it was the intention of the legislature, when it enacted section 5242, R.S. 1909, to authorize courts to single out and direct the attention of juries to the evidence of such witnesses as the court may think are personally interested in the result of the trial — it sounds too much like singling out certain evidence for special comment. The instruction does not tell the jury how much discredit is cast upon the evidence of defendant or his wife by the fact that they are interested in the result of the trial. To my mind the instruction is of little or no value to the state, for it would *Page 578 be a very unsophisticated jury, indeed, which would not intuitively know that the defendant and his wife would be prone to color their evidence in favor of the defense, while a witness possessing no interest would be likely to give a more fair and impartial narrative of the facts. A jury need not be treated like a primary class in a public school." In State v. King, 64 So. (La.) 1007, 1009, the court gave rather elaborate consideration to a similar instruction. It said, inter alia: "Whether a particular witness has a greater or less interest than another in the outcome of any given criminal prosecution is a question of fact, the determination of which, and the application of the fact, when ascertained, to the determination of the question of the credibility of the witness, are confided, with all other questions of fact, exclusively to the jury." (There was a statute in Louisiana similar to our section 2426.) "If, then, the judge is required to abstain, and is prohibited, from recapitulating the evidence, or stating the testimony, or giving any opinion, lest he influence the jury in its finding of a particular fact, a fortiori is he required to abstain, and is he prohibited, from assuming such fact, and upon the basis of that assumption, instructing the jury of the particular effect which should be attributed to it. It has sometimes been said that an intelligent jury will know, without being reminded by the judge, that the defendant in a criminal case, who testifies in his own behalf, is an interested witness, and hence that an instruction to that effect is harmless, even though he be particularly designated. But a jury, whether intelligent or otherwise, may, in a particular case be impressed with the idea that the prosecuting witness is the real criminal, and is interested in convicting the defendant in order to save himself, or, that other state witnesses are sufficiently interested, for other reasons, to induce them to commit perjury, and if, in either case, the judge, being *Page 579 differently impressed, should instruct the jury to consider the interest of the defendant in determining the question of his credibility, and should say nothing of the interest or credibility of the other witnesses, he would thereby in all probability influence the jury in the finding of the ultimate and controlling facts of the case. Again, the interest of the defendant in such case being obvious, whilst the possible interest of the adverse witnesses is usually not, so, it would seem that if, under our law, the judge were authorized to interfere at all, his aid would be more useful were he to call the attention of the jury to the possible interest of the latter than to the obvious interest of the former. His action in that respect could, however, have no other purpose or effect than to influence the finding of the jury upon a question of fact; and, if it would be incompetent for him to lead the jury to a finding, or to an application, of the fact of the interest of an adverse witness, it would be equally incompetent for him, by assuming the obvious fact of the defendant's interest, to lead the jury to the application of that fact to the question of defendant's credibility, and would be all the worse because to call attention to that which is obvious attributes to it a degree of importance which it might not otherwise possess." All of this is applicable and forceful, in the light of the evidence, in the case at bar.
"His own testimony may be the only shield of an innocent person. A defendant has the right to submit his testimony to the jury to be judged of by it, uninfluenced by any suggestions of its probable falsity or an authorization to the jury to throw it aside as unworthy of belief because of the strong temptation of the defendant to swear falsely. There is little danger that juries will be unduly influenced by the testimony of defendants in criminal cases. They do not need any cautioning against too ready credence to the exculpation furnished by one on trial for a *Page 580 felony. The accused should be allowed to exercise his right to testify unimpaired by any suggestions calculated to detract from its value in the estimation of the jury." Buckley v. State,62 Miss. 705, 707.
In Territory v. Truslow, 27 Haw. 109, cited by the prosecution in the case at bar in support of the instruction as given, "the only witness involved in the question of credibility was the defendant;" and it was held that "for the court to have instructed the jury upon the credibility of the evidence of the prosecution which the defendant had in terms admitted would have been to stultify itself," that a general instruction with reference to the interest of witnesses could not have been applicable to any witness other than the defendant and that, therefore, the direct instruction referring to the credibility of the defendant himself was not erroneous or prejudicial. The actual decision in that case went no further. If there are any general expressions in the opinion which are in conflict with the views now expressed by me, to that extent I think that the former decision should not be followed.
In my opinion the verdict should be set aside and a new trial should be granted. *Page 581