Concurring Opinion.
Roby, J.It has many times been held that the use of the word “should” in such an instruction as the one herein considered was reversible error. Woollen v. Whitacre (1883), 91 Ind. 502, cases there cited.
It was subsequently held, most reasonably, indeed, that “when a judge tells the jury that it is proper for it to consider the interest, manner, etc., of the witnesses, as it is usually phrased, he is but ruling as he may rightly rule *283that such evidence is competent; and, in searching for the fact established by the evidence, it is the duty of the jury to consider all competent evidence that may throw light upon the truth, and it is no less essential to a correct result, and quite as much the jury’s duty to consider facts and circumstances properly before them, which go to discredit a witness or to strengthen his testimony as it is to consider the statements made by the witnesses. The cases of Woollen v. Whitacre [1883], 91 Ind. 502, Unruh v. State, ex rel. (1886), 305 Ind. 117, Duvall v. Kenton (1891), 127 Ind. 178, and perhaps some others, so far as they may seem to hold to a different rule, are no longer authorities upon the question here involved.” Fifer v. Ritter (1902), 159 Ind. 8, 12.
Of course there is a difference between words permissive and words imperative, but where the instructions taken together show that “may” was understood as a direction to consider and weigh, there is no error in using it, and so of the misuse of the word “should,” or its equivalent, while we all know that the understanding of the jury depends not upon the technical accuracy of language, so much as upon the accent, emphasis and tone of the judge who gives the instruction. The decision in the case of Fifer v. Ritter, supra, was the perfection of reason, and is expressive of the law. . •
The writer of the opinion in Southern R. Co. v. State (1905), 165 Ind. 613, apparently understood the holding that permitted the use of the word “should” to be a declaration that no other form of expression could properly be used. In this he was mistaken. The case is not therefore an authority upon the subject, being based, as the opinion shows, upon a misapprehension.