Concurring. — I do not concur in the views expressed by my associate respecting instruction number four, given by the court of its own motion, and which is in the following words: “ That in determining *50what weight you will give defendant’s testimony you should consider the fact that he is the party accused and on trial in this cause.” This instruction is stronger in its terms than any of its class. yet approved by this court, but whether or notit is erroneous, for that reason, must depend upon a correct understanding of the statute and the decisions hereinafter considered. The law is found in section 1918, Revised Statutes, a portion of which is as follows : “No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination ; or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness ; provided that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may, at the option of the defendant, testify in his own behalf, or on behalf of a co-defendant, and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case.”
It will be noticed that no express authority is here given the court to direct attention to the defendant’s testimony, or to give any instruction respecting his credibility. It will be noticed, too, that the husband or wife of a defendant is liable, so far as the law goes, to the same tests, when testifying, as may be applied to the defendant, and that both the defendant and husband or wife of the defendant are privileged, and alike privileged, from cross-examination, except as to any matter referred to in chief. These witnesses may testify to as many or as few pertinent matters as to them shall seem advisable, and within the bounds they establish the cross-examination is confined. It should be noted further that the reference in the clause, “but any such facts may be shown for the purpose of affecting the credibility of such witness,” *51must be primarily to the consort of the accused. The identity of the accused and the witness, when the same party is on trial, and also a witness testifying for himself, is, in ordinary proceedings, apparent. The fact that, •one on trial for an offence has an interest in the result, is obvious. That his testimony is apt to be affected by that interest is but common experience. That the husband or wife is, also, an interested witness is plain, and that the testimony of such witness is liable to be tinged by considerations growing out of the relation between the witness and the accused is beyond dispute. But the fact of the relationship is to be established, in most cases', by proof, the evidence of it not otherwise appearing, as in the case of the defendant when he passes from the “box” to the witness chair, and thence to the prisoner’s box again. The interest of a witness in the event of a suit in which he testifies may be shown independent of the statute.
It now remains for us to consider how this instruction will appear when compared with the instructions of like character approved by this court. In the case of State v. Maguire, 69 Mo. 197, this instruction was before the court: “ The jury are instructed that by the statutes of this state the defendant is a competent witness in his own behalf, but the fact that he is a witness testifying in his own behalf may be considered by the jury in determining the credibility of his testimony.” In State v. Zorn, 71 Mo. 415, this instruction was approved : “ The defendant is competent to testify as a witness in this case, but the fact that he is the defendant may be shown for the purpose of affecting his credibility.” An instruction in State v. Sanders, 76 Mo. 35, is almost in the language of the one in the Zorn case, supra. The instruction in State v. McGinnis, 76 Mo. 326, is in these words: “ That the defendant has a right to be a witness in his own behalf, yet in weighing' his evidence and the weight to be given thereto, they have a *52right to take into consideration the interest that he has at stake in this case.”
In the Maguire case, supra, Henry, J., delivering the opinion of the court, after commenting on a number of decisions of other courts, says: “There was no impropriety in giving the instruction. A jury composed of men of sufficient intelligence to sit upon a jury, need not be told that the fact that one is on trial for a crime may be considered by them in determining the credibility of his testimony.” In the Zorn case, supra, this is all that is said about the instruction there given: “Án instruction similar to this, and containing the same principle, was expressly approved by this court in the case of The State v. Maguire, 69 Mo. 197.” Respecting the instruction in Staten. Sanders, supra, this' only is said: “ This was clearly the law, and no error was committed in giving it to the jury.” In the McGinnis case, supra, this is all that is said about the instruction above copied: “The fifth instruction was fully warranted by the cases of State v. Maguire, 69 Mo. 197, and State n. Zorn, 71 Mo. 415.” In State v. Cooper, 71 Mo. 436, defendant having complained of the court’s refusal to give a certain instruction asked by him, it is said: “Number four, given for the state, was all that defendant was entitled to on that subject. By it the jury were told that they are the sole judges of the credibility of witnesses, and in passing upon the credit to be given to any witness (defendant included), they may take into consideration the means of knowledge, the relation to the transaction, and the interest of the witness. ’ ’ I quote further from the same opinion: “In a criminal proceeding the defendant’s status as a witness is the same as that of a party to a civil suit, who becomes a witness for himself.” And: “The credit of a witness testifying for himself in a criminal cause, is to be determined by the jury, as in a civil suit, by the demeanor of the witness, the character of his testimony, and the magnitude of his interest in the event.” In State v. Banks, 73 Mo. 592, *53it is said: “But under our law, a defendant in a •criminal cause is a competent witness, and Ms status when on the witness stand is the same as that of a party to a civil suit who becomes a witness for himself.”
Prom this review it appears that in each of the instructions in any way resembling this, and approved, two ideas are conveyed to the jury; first, that the defendant is a competent witness ; second, that the fact of his being the accused on trial, or his interest in the event of the suit, may be considered as affecting his credibility or the weight of his testimony. It also appears in the Gooper case that a general instruction on the credibility of witnesses, defendant included, renders unnecessary an instruction defining the defendant’s status as a witness. We find, too, that the defendant, as a witness in a criminal case, submits his testimony to be weighed in the same scales that will be used if he were testifying in a civil suit wherein he is a party, his status is the same. Now I do not find that it is the duty of the trial court under this statute, or these decisions, to give any special instruction concerning the defendant’s testimony. So far, no instruction directing attention to a defendant’s interest, or credibility, or incredibility, has been approved by this court, except where, at the same time, in the same instruction, attention was also called to the fact of his competency to testify as a witness. Nor are any of these instructions directory. They are expressive as to the scrutiny' of a defendant’s testimony of permission. At most they are mildly suggestive and delicately cautionary.
Should is persuasive, its use imports an obligation. In the instruction under consideration there is nothing to soften the injunction, no declaration, as in the instructions I have copied from the reports, asserting or hinting at defendant’s competency as a witness. If it be said that the fact of his being allowed to testify made that plain enough, I may, with the learned judge who delivered the opinion in the Maguire case, supra, say *54that any one competent to sit upon a jury need not be told that the fact of the witness being the defendant on trial might be considered in determining the weight of his testimony. The court did not in any of these cases from which I have quoted do more than approve the instructions as not erroneous. They are not viewed as. necessary instructions. If the instruction under consideration is not erroneous, then it would follow logically, I think, that there would be no error in advancing a step farther by substituting must for should. That the natural effect of this instruction, disconnected as it is, and expressing but one thought, was to cast suspicion upon the defendant’s testimony can hardly be doubted. It is doubly objectionable in being the only instruction given on the credibility of witnesses, or weight of evidence, although as many as a dozen witnesses testified on the trial. State v. Underwood, 75 Mo. 230.
The statute (section 1920) forbids comment by the court upon the evidence. State v. Bell, 70 Mo. 633. What comment could be more sly or effective than that embodied in a declaration of law, which singles out one of a dozen witnesses, and says, you should consider anything, I care not what, as affecting the credibility of this witness. The only law embraced in section 1918, having a peculiar application to the defendant, or to the husband, or wife of the defendant, on which it might be important to instruct a jury, is that which limits the cross-examination of such witnesses to matters referred to on the examination in chief. On general principles, under the statute, and by authority of the decisions herein reviewed, I conclude that this instruction, number four, is erroneous.
But was the testimony of the defendant, upon which this instruction cast suspicion, of such character that he could be prejudiced by this error of the court ? He testified, substantially, that he had no recollection of the *55alleged shooting, or of having been at any of the places, Flynn’s saloon excepted, where the state’s witnesses said he was the night of July 5th; or of getting or having a pistol that night; or of having shot himself, or when or where or how he was shot. His first recollection after this blank was of witness, Jennings, coming and calling him about nine or ten o’ clock the next morning. That he then found himself lying in a thicket some distance from the scene of the tragedy. That his head was bloody and hurting him fearfully, and he could not imagine what was the matter with it. That he didn’t know he had a pistol till Jennings called his attention to it, when it was found to be in his pocket. This testimony does not contradict or tend to contradict anything introduced by the state; it simply amounts to a denial of all recollection of the events of that fatal July night. Nor could it under the law, as declared by this court, support the plea of insanity. State v. Ward, 74 Mo. 253. So, although it was error to give this instruction, yet the error is in this case harmless. I concur with Martin, C., in the result, but think instruction number four should be condemned.