Defendant was convicted of robbing, by force, one Thompson D. Matthews of the sum of $150. Matthews owned and operated a confectioner's shop *Page 467 near the campus of the University of Idaho, in the town of Moscow. At about 12:20 in the early morning of October 25, 1932, the confectioner closed his shop, got into his automobile, and, accompanied by his clerk, started for home, carrying with him the receipts of the day's business. On the way home Matthews stopped at the home of the clerk and let him out of the car and then continued on his way home. Someone, before the confectioner had started home, concealed himself in the Matthews car, back of the front seat. After the clerk had gotten out of the car, and when Matthews was a short distance from home, and traveling at about 45 miles an hour, he was struck over the head with a blunt instrument and robbed. The case comes into this court on an appeal from the judgment of conviction.
Appellant contends that the trial court erred in giving instruction No. 13 for the reason that it is contrary to law and required the jury to specially scrutinize his testimony and puts him in a class inferior to other witnesses, it being also contended that instructions as to the credibility of witnesses should be general, and apply to all of the witnesses for the state and defendant alike, and that the testimony of appellant ought not to be singled out for special comment.
Instruction No. 13 reads as follows:
"Jurors are not bound by the uncontradicted testimony of an interested party when such testimony upon being carefully weighed, does not commend itself as worthy of belief. If, by reason of improbable and inconsistent statements the testimony of an interested party appears to be lacking in the element of truthfulness, juries may in their discretion reject the same."
By instruction No. 13 the trial court does not actually name the appellant. The comments of the court being directed to and pointedly aimed at the testimony of "an interested party." Therefore, who is the or an interested party, as a matter of law, in a criminal action? In determining that question we turn to the following applicable sections of the statute: *Page 468
"19-103. Criminal action defined. — The proceedings by which a party charged with a public offense is accused and brought to trial and punishment is known as a criminal action.
"19-104. Parties to criminal actions. — A criminal action is prosecuted in the name of the state of Idaho, as a party, against the person charged with the offense.
"19-105. Defendant. — The party prosecuted in a criminal action is designated in this code as the defendant."
The proceedings, then, by which a party charged with a public offense is accused and brought to trial and punishment is "known as a criminal action," and that criminal action, under the code, is prosecuted in the name of and by the state of Idaho, as a party plaintiff, against the person charged with the commission of the offense, and the party prosecuted in such criminal action is designated in the code as the defendant.
So that in the case at bar, as a matter of law, we only have two interested parties, the state of Idaho (a body politic, prosecuting by and through the prosecuting attorney for Latah county) and the appellant. Of course, the state of Idaho, being a body politic could not and did not testify. On the other hand, the appellant is a natural person and did testify in his own behalf. Consequently, there was only one party to whom the comments of the trial court could possibly have applied, and that party was the appellant.
By instruction No. 12 the trial court instructed the jury very fully and correctly on the credibility of witnesses in general, as follows:
"Gentlemen of the Jury, yon are the sole and exclusive judges of the facts of what has been proven in this case, and of the credibility of the witnesses and of the weight of the testimony of each and all of them, and in determining these questions you should take into consideration every fact and circumstance in evidence, which, in your judgment, affects the credibility of any witness, or the weight to be given to his or her testimony, and from the facts and circumstances in evidence it is for the jury to determine what *Page 469 witnesses have or have not spoken truthfully, and to give credit accordingly.
"It is the duty of the jury in passing upon the credibility of the testimony of the several witnesses to reconcile all the different parts of the testimony if possible. It is only in cases where it is palpable that a witness has deliberately and intentionally testified falsely as to some material matter, and is not corroborated by other evidence that a jury is warranted in disregarding his entire testimony.
"The Court instructs the jury that the credibility of the witnesses is a question exclusively for the jury, and the law is that where a number of witnesses testify directly opposite to each other, the jury is not bound to regard the weight of the testimony as evenly balanced; the jury have the right to determine from the appearances of the witnesses on the stand, their manner of testifying, their apparent intelligence or lack of intelligence, and from the other surrounding circumstances appearing on the trial, which witnesses are the more worthy of credit, and to give credit accordingly. In determining what weight a witness has in the result of the trial, consider all of the facts shown by the evidence, and whether the interest of the witness has caused him to color, exaggerate or suppress the truth."
After having given the above instruction, the trial court immediately followed with and gave instruction No. 13, which served to at once especially direct the attention of the jury to the testimony of the appellant, and by thus singling him out, gave the jury to understand that the testimony of the appellant should be weighed, considered and tested somewhat differently and scrutinized more closely than the testimony of other witnesses, and suggesting that the appellant was liable to testify falsely because he was an or the interested party. Chief Justice Budge, exhaustively reviewing the authorities, held in State v. Rogers, 30 Idaho 259, 163 P. 912:
"As to instruction No. 30, we have to say that this instruction has no doubt been frequently given by trial courts of this state. Nevertheless, upon a careful examination of *Page 470 the language here used, and of the authorities, we are convinced that it is erroneous and prejudicial to the rights of the appellant. This instruction reads as follows:
" '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 orcircumstances.'
"The words italicized, it is insisted by counsel for appellant, 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. (People v. Maughs [149 Cal. 253, 86 P. 187], supra; Fletcherv. State, 2 Okl. Cr. 300, 101 P. 599, 23 L.R.A., N.S., 581; Culpepper v. State [4 Okl. Cr. 103, 111 P. 679, 140 Am. St. 668, 31 L.R.A., N.S., 1166], supra; Buckley v. State,62 Miss. 705; State v. Webb [6 Idaho 428, 55 P. 892], supra;People v. Vereneseneckockockhoff, 129 Cal. 497, 58 P. 156; 2 Thompson, Trials, *Page 471 2d ed., sec. 2421; Banks v. State, 2 Okl. Cr. 339,101 Pac. 610; Crow v. State, 3 Okl. Cr. 428, 106 P. 556.)"
In State v. Rogers, supra, the judgment of conviction was reversed and a new trial ordered, and, further, the rule announced in the Rogers case was thereafter strongly adhered to in State v. Lundhigh and State v. Foyte, supra, and until now it was thought that the rule of law announced in the Rogers case had become so well settled in this jurisdiction as to be absolutely impervious to either nice "distinctions," "distinguishing," or other similar or any "judicial treatment" which would nullify that rule, but it appears from the majority opinion that the application of that rule, after all, depends upon the quantity of evidence adduced against a defendant in any given case.
The robbery in question was very brutal and cruel, showing a wanton and wicked heart in whoever committed the crime, which apparently had the effect of making a majority of the court seered and visit upon the defendant in the case at bar the full weight and force of the condemnation of the crime itself, sweeping aside any and all principles of law standing in the way of an affirmance of the judgment of conviction.
And once it is concluded from the testimony of witnesses (whose bearing and demeanor while on the witness-stand the majority has had no opportunity to observe) that a defendant is guilty, then, under the majority opinion, a defendant has noright to have the jury, trying him, correctly instructed as to the law of his case, which this court is under any duty to enforce.
For the reasons above stated, I cannot concur in the majority opinion. *Page 472