Barnett v. Commonwealth

• Decision Date: 11 November 1886
• Citation: 1 S.W. 722,84 Ky. 449
• Parties: BARNETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

1 S.W. 722

84 Ky. 449

BARNETT v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 11, 1886

Appeal from Union circuit court.

Cissell & Dudley and W. F. Berry, for appellant, Barnett. P. W Hardin, for the Commonwealth.

HOLT J.

Upon the trial of the appellant, Charles Barnett, for malicious shooting and wounding, the following instruction was given over his objection. "The jury are the sole judges, for themselves, of the weight of the testimony and credibility of the witnesses, and may attach such weight to any and all parts thereof as they may think proper; and, if they believe that any witness or witnesses have willfully sworn falsely as to any material fact, they may, if they deem proper disregard the entire testimony of such witness or witnesses."

Theoretically this is all true, and yet this court has repeatedly condemned such an instruction, because it, in effect, invades the province of the jury. By section 225 of the Criminal Code it is made the duty of the court to instruct the jury on the law applicable to the case. When it has done this, it has fully discharged its duty, and, by implication, it is forbidden from suggesting to the jury how they shall consider the testimony, or the weight to be attached to any particular part of it, or any isolated facts. If it can do so at all, there is no limit to the power. If it may tell them that one class of evidence should be closely scrutinized, why may it not say to them that it should be discredited? Save in the case of Jump v. Com., (MS. opinion, May 31, 1884,) perhaps this court has never reversed a judgment of conviction for this error; but it has not been because the instruction was not improper, but because, under the particular circumstances of the case under consideration, the accused had not been prejudiced by it. Here the testimony is very conflicting as to whether the accused is the person who did the shooting. The witnesses in his behalf are, with one exception, nearly related to him, and there are some contradictions and discrepancies in their testimony. Under these circumstances, the instruction supra would naturally be understood by the jury as an intimation from the court, that, in its opinion, the witnesses, or some of them, had sworn falsely; and such an opinion, coming from the court, could but have an undue influence upon the jury, and prevent them from freely passing upon the guilt or innocence of the accused upon the entire testimony.

In a case...