Clary v. State

• Decision Date: 17 April 1901
• Docket Number: 11,840
• Citation: 85 N.W. 897,61 Neb. 688
• Parties: CLAUD CLARY v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

85 N.W. 897

61 Neb. 688

CLAUD CLARY v. STATE OF NEBRASKA

No. 11,840

Supreme Court of Nebraska

April 17, 1901

ERROR from the district court for Nemaha county. Tried below before STULL, J. Affirmed. SULLIVAN, J., dissents.

AFFIRMED.

George W. Cornell, for plaintiff in error.

Frank N. Prout, Attorney General, and Norris Brown, Deputy, contra.

NORVAL C. J. SULLIVAN, J., dissents.

OPINION

NORVAL, C. J.

Claud Clary was convicted of an assault with intent to wound one Charles Wright. The record is here for review without a bill of exceptions.

The instructions in the case are numerous and lengthy. Eleven were given on request of the state, twenty-three were submitted by defendant and four were given by the court on its own motion. It is not now suggested that any point in the case was not covered by the charge, but it is urged that certain paragraphs of the instructions are erroneous, among others, the following: "2. The credit of a witness depends largely upon two things, that is, first his ability to know what occurred and his disposition for telling the truth as to the occurrence. Statements by a witness having superior opportunities for knowing what took place and superior intelligence and memory, and entirely uninterested in the event of the suit, other things being equal, is entitled to greater weight before the jury. One of the tests for determining the credibility of a witness, is his interest in the result of the suit. As a general rule a witness who is interested in the result of the suit will not be as honest, candid and fair in his testimony as one who is not so interested; but the degree of credit to be given to each and all of the witnesses is a question for the jury alone, and not for the court." Two criticisms are made upon this instruction; first, that it is argumentative, and second, it encroaches upon the province of the jury. Neither objection is well taken. Manifestly, it is not argumentative and when taken as an entirety and in connection with the other portions of the charge, it is not vulnerable to the other attack made upon it, by counsel for the accused. It in effect told the jury, and properly so, that the credibility of the witnesses was for them alone to pass upon and in determining that question the interest of a witness is proper to be considered. By the instruction the court expressed no opinion upon any issue of fact in the case, and the court so stated to the jury in the following request tendered by the defendant. "1. The court instructs the jury that in the trial of this case and in the instructions given, the court has in nowise attempted to express its opinion as to the guilt or innocence of the defendant, and you must not construe any actions or rulings of the court in the trial of this case, or in the instructions given, as an intimation of the opinion of this court as to the guilt or innocence of the defendant." The rule is that instructions must be construed together, and when so construed, if they state the law applicable to facts and issues in the case, they will be upheld. But it is argued that the instruction assailed was prejudicially erroneous because it affirmed the principle that the testimony of any intelligent, disinterested witness other things being equal, is entitled to greater weight than that of one less intelligent, and who is interested. Without the bill of exceptions we can not know that the accused was prejudiced, since his witnesses may have been entirely free from interest, and more intelligent than those who testified for the state. If this were so, it is obvious that the defendant was not prejudiced by the giving of the instruction. We have said that in the absence of a bill of exceptions instructions will be presumed free from error,...