In the case at bar, the trial court instructed the jury:
"In weighing his [appellant's] testimony you may take intoconsideration the interest which he has in the outcome of thecase, the manner in which he testified, and the probability orimprobability of his testimony; in short, you should treat him the same as any other witness in the case, and subject him to the same tests, and only the same tests, that are legally applied to other witnesses who have testified in the case." (Emphasis added)
In State v. Rogers, 30 Idaho 259, 272, 163 P. 912, 916, Rogers challenged several instructions given by the trial court, among them the following:
"`The court instructs you, as a matter of law, that when the defendant testified as a witness in this case, he became as any other witness, and his credibility is to be tested by, and subject to, the same tests as are legally applied to any other witness; and in determining the degree of credibility that shall be accorded his testimony, the jury have a right to takeinto consideration the fact that he is interested in the resultof the trial, as well as his demeanor and conduct upon thewitness stand, and during the trial, and whether or not he hasbeen contradicted or corroborated by other witnesses or circumstances.' [Emphasis is that of the court in the Rogers case.]
"The words italicized, it is insisted by counsel for appellant [Rogers], are prejudicial, for the reason that the defendant is singled out and the attention of the jury is particularly directed to his credibility as a witness. We think the better rule for the court to follow is not to single out any special witness personally and burden his testimony with any suggestions which might indicate to the jury that in the opinion of the court such witness was liable to testify falsely. Instructions as to the credibility of a witness should be general and apply equally to all of the witnesses for the state and the defendant alike. Because a witness may be the defendant is no particular reason why he should be visited with condemnation upon the one hand or clothed with sanctity upon the other. He is before the court as a witness, and should be treated by both the court and the jury just as other witnesses are treated, no better and no worse. And the giving of such instruction cannot be regarded as otherwise than erroneous. [Citing cases]
"For the reasons above expressed we have reached the conclusion that appellant did not have the fair and impartial trial *Page 111 to which the laws of this state entitle him." (Emphasis added)
This court, in State v. Rogers, supra, did not hold language to the effect that "you [the jury] should treat him [defendant] the same as any other witness in the case, and subject him to the same tests, and only the same tests, that are legally applied to other witnesses who have testified in the case", obviated or removed the error of the trial court in instructing the jury that "In weighing his [appellant's] testimony, you maytake into consideration the interest which he has in theoutcome of the case."
On the other hand, this court, in State v. Rogers, supra, held the instruction last above quoted was "erroneous andprejudicial to the rights of the appellant [Rogers]," and, while other instructions were also held to be "erroneous and prejudicial", this court reversed the judgment of conviction and ordered a new trial, holding Rogers "did not have the fair and impartial trial to which the laws of this state entitle him." (Emphasis added)
It will be noted in the second part of the instruction first above quoted, the trial court in the case at bar also instructed the jury it should treat appellant "the same as any other witness in the case", which, of course, the jury could not do, if, as the trial court expressly directed it to do, it gave special consideration to the interest appellant had in the outcome of the case, which interest no other witness could possibly have; hence the jury could not and evidently did not "treat him [appellant] the same as any other witness in the case".
Furthermore, once a jury has been told to closely scrutinize the testimony of a defendant because he is liable to testify falsely on account of his interest in the outcome of his case, nothing the trial court can say afterward will prevent the jury from believing a defendant will testify to anything to avoid conviction, just as the jury in the case at bar was, in effect, instructed to believe concerning appellant.
Therefore, I dissent.
I am authorized to state MILLER, J., concurs in this dissent.