I dissent. The Code provides that on all proper occasions the jury shall be instructed: “That their power of judging *148of the effect of evidence is not arbitrary, but to be exercised with legal discretion and in subordination to the rules of evidence.” (C. C. P. 2,061.)
I know of no rule of evidence by which a jury would be authorized to reject the evidence of a witness because it was not convincing, and did not carry with it a belief in its truth.
If convinced that it was untrue the right to reject it would be clear. But there is a substantial difference between evidence that fails to convince and to carry with it a belief in its truth and that which carries with it a belief in its falsity.
If satisfied that it was false the jury might properly reject - it. Otherwise it should have been considered in connection with the other evidence. If the evidence of the defendant was favorable to himself, and convincing, and carried with it a belief in its truth, no other evidence would have been required to establish his innocence. I do not think that any witness is required to inspire in the minds of the jury such implicit confidence in the accuracy of his evidence as this instruction requires in order to have it considered in connection with the other evidence in the case. The jury had no more right to reject the evidence of the defendant on that ground than it would have to reject the evidence of any other witness on that ground. The law does not require that a defendant’s evidence shall be more convincing than that of any other witness to entitle it to consideration.
The other instruction, though less objectionable than the one which I have noticed, was, I think, more likely to mislead than to aid the jury in any attempt it might make to distinguish between the two classes of evidence referred to.
I therefore think that the judgment should be reversed,
McKee, J,:I dissent. Although the last instruction, as set forth in the prevailing opinion, has been approved in the case of The People v. Cronin, it is, in my judgment, not law.
In the case in hand, the defendant had testified in his own behalf; and the jury were told, substantially, not to act upon his testimony, unless it was convincing and carried with it a belief in its truth. Such an instruction as to the testimony of any other witness would not be upheld, and yet a defend*149ant as a witness in his own behalf is entitled to the same right as any other witness to have his testimony weighed and considered by the jury in connection with the facts and circumstances of the case. To tell a jury that they are not to act at all upon the testimony of a witness, unless it produces conviction in their minds, is to take away from them all discretion of judging whether part of the testimony may be true, and part of it untrue, or how far any of it may be corroborated by any other testimony, or by the facts and circumstances of the case.
Of course, if the defendant’s testimony or, indeed, the testimony of any other witness, satisfies the minds of the jurors of its truth, that would be conclusive of the facts established by it. Being convincing, the jurors are bound by it. But it may be less than convincing, and yet not absolutely false. It may be true in part and untrue in part. Some of it may be corroborated by the testimony of other credible witnesses, or by some of the facts and circumstances developed by their testimony. If so, a jury would have no right to disregard the testimony. A jury is not bound to take the whole of the testimony of any witness. His statement may not be convincing: that is rarely attainable in judicial proceedings. But it is the duty of the jury to weigh the testimony,' and if any part of it is corroborated by other credible witnesses it is entitled to due consideration in connection with the probabilities of the case. Otherwise the privilege of being sworn as a witness in his own behalf is, to a defendant, a mockery.