Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1881-01-30
INSTRUCTIONS TO A JURY
carson Daily Index.

IOdfeCH Oaiy I
The Supreme Court decision in the case
Of johnson and O'Brien, convicted Of rob
berry, by which the prisoners were granted
a new trial, and taken to Eureka a few
days since for that purpose, contains some
statements of more than usual interest, as
follows:
Upon the trial the Court, of its W mo-
ton, instructed the jury as follows:
"Under the laws Of this State defend
ants are permitted to testify in their own
behalf. The same clause of the statute
which gives them the privilege also pro-
vides that you are to be the sole judges OF
the degree Of credit to be given TO such
testimony, but under the instructions Of
the Court, and / therefore say to you that
I see no reason why such testimony may
not be true, but / at the same time fail to
see any reason why it must be true Or why
it should be entitled to more credit than
that of other witnesses.
'sThere is in every criminal case a greater
or less temptation for a defendant to tes-
tify strongly or even falsely in his favor,
and l consider that jurors should, in every
instance, consider the testimony Of . de-
PENDANT with great caution"
The entire framework of this iDstruc-
ton trenches upon the province of the
jury.
When a defendant in a criminal case Of
fers himself as a witness in his own behalf
il is proper for the Court to instruct the
Jury in relation to his creditability, es-
pecially if it has been assailed by counsel
or is clouded by the circumstance of the
case. His c~reditability, however, is to be
determined in the same manner as that OF
any other witnesses.
1t is the exclusive province of the jury
to determine from the evidence in the case,
and from the appearance and manner OF
the witness, what credit, if any, is due to
his testimony. In determining this ques-
ton the jury have the right to consider the
circumstances under which the witness
gives his testimony, and the inducements
and temptations which would ordinarily
influence a person in his situation.
But the instructions should only inform
the jurors as to what matters it would be
proper for them to consider in determin-
ing the credibility Of the witness. Beyond
this the Judge has no right to go. He
should not state to the jury his estimate
of the witness or give his opinion as to the
weight to be attached to his testimony.
He should declare the law. The jury
should find the facts.
The latter portion of the instruction is
clearly erroneous.
1t is not true that "there is in every
criminal case a greater or less temptation
for a defendant to testify # y #
falsely in his favor"
If the defendant is guilty there may be
a temptation to swear falsely; but whether
there is such an inducemept or tempta-
ton is always a question for the jury,
and not for the Court, to determine. If
the defendant is innocent it will generally
be to his interest to tell the truth, and
there can seldom be any inducement or
temptation for him to testify falsely.
For the reasons already stated, it was,
also, erroneous and prejudicial to the de-
PENDANTS for the Court to say 8 that jurors
should in every instance consider the testi-
mony Of a defendant with great caution"
The principles we have announced are
sustained by numerous authorities.