concurring:
I do not agree with the majority’s failure to hold that instruction No. 26 should not have been given. The instruction urges that the jury, in resolving conflicts in the evidence, to apply the “theory that each witness has testified to the truth.” This instruction may, in some cases, seriously invade the jury’s function and significantly erode the presumption of innocence. In this case, however, the totality of the circumstances persuades me that the instruction did not affect the outcome of the trial. Thus, I would hold that it was error to give the instruction, but that in this case the error was harmless.
Affirmed.