(dissenting).
I dissent. The decision as written lays down a strange and novel rule of law. It purports to overturn the verdict rendered by the judge sitting without a jury because the testimony of the corroborating witness was somewhat contradictory.
Until this day the law was to the effect that except in equity matters the trier of the facts could weigh the testimony of each witness and give such weight thereto as he deemed proper.1 The law is set out in 5A C.J.S. Appeal and Error § 1645, where a host of cases is appended in the footnotes. Other cases may be found in West Publishing Company Digest, Appeal and Error, @^994.
The trial judge in this case heard the corroborating witness (a half sister of the defendant) testify that the defendant and the accomplice went for some “booze” ; that she heard the defendant’s voice in another room; that she saw a second man holding *81the light and he looked like the defendant. When the State rested, the defendant asked for additional time to produce his evidence. During the interim he served notice that he intended to offer evidence as to an alibi and also changed lawyers. Twenty-three days later he put on his evidence. He called the victim, his half sister, as his own witness. At this hearing the witness was not too sure about the identity of the defendant. However, she admitted that she had told the investigating officer when he initially contacted her that the defendant was present. She also admitted telling the prosecuting attorney before trial that the defendant was present when the pictures were taken. She never changed her testimony to the effect that the only men present during the time in question were the defendant and the accomplice and that while the pictures were being taken by the accomplice the other man who looked like the defendant held the light.
The defendant testified in his own behalf and in doing so corroborated the accomplice. He admitted that he held the lamp but when he saw what was going on, he left the room and went to bed. He would have the court believe that he entered a dark room and took an ordinary reading lamp from his wife, and when she turned it on, he held it for about eight seconds, during which time he saw his 17-year-old half sister lying nude upon the floor in a most vulgar and suggestive pose and that he did nothing more than leave her there and go to bed. He testified that the reason he did nothing was because he was afraid of the violent temper of his accomplice. However, he had told the investigating officer prior thereto that he left the room and went to his bed because he was afraid his wife would shoot him.
The opinion states that the defendant testified that he worked from 4:00 p. m. August 1 to 2:00 a. m. August 2, but it does not tell you that the evidence presented by the defendant also had him back at work at 6:28 a. m. on August 2, the same morning that he said he came home.
The defendant claims that he knew nothing about any pictures being taken but the next day found four of the nude pictures on the refrigerator. These pictures he kept until, as he says, “ * * * they’d just thrown me out and everything and they wouldn’t give me any of my work clothes or anything, so I eventually had to get them and I figured while I was in there I might as well get rid of them pictures so I give ’em to Steve [the officer] * * ”
It was for the trial judge to decide what the facts were. He could believe a part of a witness’s testimony to be true and disbelieve other parts if he chose to do so. It certainly is not for this court to tell him that he cannot believe the witness told the truth on January 28 simply because she changed some of her testimony three weeks later.
*82The judge as the trier of the fact could consider her reasons for changing her testimony. Was it a desire to protect her half brother? One may wonder just why the change, but it was within the sole province of the trial judge to determine what the facts were.
I would affirm the judgment.
. Williams v. Lloyd, 16 Utah 2d 427, 403 P.2d 166 (1965).