#### Lester M. Strong v. State of Nebraska.

Filed December 5, 1900.

No. 11,449.

1. Instruction: Disparaging Suggestions: Province oe Jury: Impeaching Testimony. An instruction pregnant with disparaging suggestions not based upon the evidence and invading' t.tte province oí tiie .jury by undertaking' to fix for them the probative value of impeaching testimony is erroneous.

2. -: Hypothetically Upon Facts. A court should instruct hypothetically upon the facts which the evidence tends to prove, and permit the jury to make their own deductions and decide for themselves whether witnesses are credible and whether their testimony is forceful or weak.

Error from, the district court for Buffalo county. Tried below before Surbivan, J.

*Reversed.*

*Iiamer*cG *ITamer, R. A. Moore*and *H. M. Sinclair,*for plaintiff in error.

*Constantine J. Smyth, AUorney General,*and *Willis D. Oldham, Deputy, contra.*

Surbivan, J.

The plaintiff in error, having been convicted of an assault with intent to commit a rape upon Caroline Plan-sen, was, by the district court of Buffalo county, sentenced to imprisonment in the penitentiary for a period of seven years. It appears from the record that on the evening of November 12, 1899, between eight and half past eight o’clock, the prosecutrix was violently assaulted by a young man who had, by falsehood and deceit, induced her to get into his buggy and ride with him to the outskirts of the city of Kearney. On the following morning the defendant was arrested and brought into the presence of Miss Hansen, but she then failed to recognize him as her assailant. It was on the trial virtually conceded that a crime had been committed, and the real question in controversy was whether the prisoner was the criminal. The prosecutrix testified that he was the man who assaulted her, and denied that she had on a *36previous occasion stated, in the presence of Anna and I-Iattie Wilson that she was unable to identify him. The Wilsons being called as impeaching witnesses testified that Miss Hansen had made the imputed admission. At the conclusion of the trial the court was asked to charge the jury on behalf of the defendant that the testimony of the Wilsons should be considered, tested and its worth estimated under the rules and by the standards applicable to the testimony of other witnesses. This request was refused, but in its stead the court gave instruction number 8, which is as follows: “The witnesses Mrs. and Miss Wilson have testified to facts tending to show that the prosecuting witness made statements to them, or in their presence, concerning the identity of her alleged asasilant different from those made in her testimony. You should consider the testimony of these witnesses. If the prosecuting witness outside of court has voluntarily made statements. concerning the identity of her alleged assailant different from those made in court, then this should have the effect of weakening her testimony here with you and should be given the effect, of weakening her identification of the defendant made herí1 in court in your presence. The extent to which such statements, if any, made out of court weakens her testimony here is for you to determine. If you believe from the evidence that the alleged statements were clearly and understandingly made by the prosecuting witness to the Wilsons, and that they have been accurately remembered and correctly and fully related by the said witnesses in their testimony, then the testimony of the Wilsons should be given great weight as tending to break down and destroy the testimony of the prosecuting witness as to the identification of the defendant. But if it appear that the Wilsons have not correctly remembered the statements of the prosecuting witness, or if she at the time did not clearly express the thought in her mind, or if the Wilsons did not correctly understand her, or if they have intentionally misquoted what she said, or *37have been influenced to believe that she made statements which she did not make, then the force of their testimony would not be so great.” The giving of this instruction was, in our judgment, prejudicial error*. The statement which it is claimed the prosecutrix made to the Wilsons was in relation to a matter which was not only relevant to the issue, but of vital importance; and the defendant was entitled to have the evidence of these witnesses go to the jury without comment calculated to depreciate or discredit it, and free from any intimation that the presiding judge viewed it with suspicion. The instruction was pregnant with disparaging suggestions; it was not based upon the evidence, and it invaded the province of the jury by undertaking in a vague way to fix for them the probative value of the impeaching testimony. There is nothing whatever in the record to indicate that the Wilsons had been induced to believe what was not true, and yet the jury were by the instruction authorized to find that their story was an invention of some one hostile to the state and that they were unconscious of its real character. In *St.*Louis, *A. & T. H. R. Co. v. Huggins,*20 Ill. App., 639, the court instructed the jury that if they believed that employees of the defendant company had testified under fear of losing their employment, that fact might be considered in weighing their evidence. This instruction was held to be reversible error, there being no evidence to support the existence of such fear. *Lewis v. Christie,*99 Ind., 377; *Zenor v. Johnson,*107 Ind., 69; *Wickersham v. Beers,*20 Ill. App., 243, and other cases, lay down the rule that it is error to caution the jury that admissions ai-e liable to be misunderstood, incorrectly remembered or inaccurately reported. Many of our own decisions hold, and the rule is believed to be universal, that instructions must be based upon and applicable to the evidence. It is also the doctrine of most of the state courts that instructions should not be argumentative, nor interfere in any way with the freedom of the jury in determining the weight of the evidence or the credibility *38of the witnesses. *Walrath v. State,*8 Nebr., 80; *Heldt v. State,*20 Nebr., 492; *Long v. State,*23 Nebr., 33; *Johnson v. State,*34 Nebr., 257; *Argabright v. State,*49 Nebr., 760; *Burnet v. Cavanagh,*56 Nebr., 190; *Chase v. Buhl Iron Works,*55 Mich., 139; *In re Stickney’s Will (Fox v. Martin),*104 Wis., 581, 80 N. W. Rep., 921. In the last mentioned case Marshall, J., delivering the opinion of the court, took occasion to remark, page 587, that an “argumentative discussion of principles, full of suggestions as to evidentiary facts, pointing to their probable existence, though there be no evidence to support that view, is quite likely to result in a miscarriage of justice, especially where the situation of the parties is such as to stimulate sympathy for the one and prejudice against the other. In such circumstances juries will easily reach a conclusion that suggested probabilities in favor of the weaker party exist and are of sufficient probative power to warrant a finding of the existence of the ultimate fad-in issue.” These views of the learned judge meet out-approval and seem quite applicable to this case. The proper cout-se is to instruct hypothetically upon the facts which the evidence tends to prove, and to permit the jury to make their own deductions and decide for themselves whether witnesses are credible and whether their testimony is forceful or weal?:. The office of a charge in our procedure is to state pertinent principles of law, rather than to point out the logical force or infirmities of the proof. Special instructions designed to aid the jury in determining what facts the evidence proves are. like some elaborate definitions of a reasonable doubt, of questionable utility in most cases and often positively mischievous.

Other questions have been discussed by counsel, but as none that seem worthy of special notice are likely to arise on another trial, we do not think it necessary to pass upon them.

The judgment is reversed and the cause remanded.

Reversed and remanded.