Muely v. State

• Citation: 19 S.W. 915
• Parties: MUELY v. STATE.
• Decision Date: 22 June 1892
• Court: Court of Appeals of Texas

19 S.W. 915

MUELY v. STATE.

Court of Appeals of Texas.

June 22, 1892.

On rehearing.

BROWN, Special Judge.

The above case was submitted to the court at the last Galveston term, and it was upon the hearing affirmed; whereupon a motion for rehearing was filed, but for want of time it was not considered by the court, and was by proper order transferred to the Austin branch of this court, and said motion is now before us for hearing. The defendant in support of his motion for rehearing urges but a single ground, which is that his special instruction asked in the court below should have been given, without the addition thereto which was made by the court of its own motion, as a qualification of said requested instruction; the charge asked being as follows, to wit: "Under the law a defendant in a criminal case has the right to testify in his own defense. The jury are the exclusive judges of the credibility of his testimony and the weight to be given to it. As a witness, the defendant is to be judged as other witnesses are judged and weighed, viz., by their appearance, demeanor on the stand, and the facts and circumstances surrounding them," — and the addition thereto made by the court being as follows, to wit: "Given with the additional statement that, in determining the credibility of a defendant who testifies in his own behalf, his interest in the issue involved is to be considered." It appears from the record of the case that the making of said addition as a qualification of said requested instruction, and the giving of said instruction with the qualification to the jury by the court, was promptly excepted to by the defendant at the time it was given. It is also made to appear that in the argument before the jury, counsel for defendant had admitted that the jury might, in determining the credibility of the defendant as a witness, consider his interest in the result of the prosecution. This is made to appear by an indorsement made by the judge on the bill of exceptions taken by defendant to the court's action in reference to the requested instruction; and it might be important were it not for the fact that the timely exception of the defendant makes it necessary for us to determine, not whether the action of the court in the matter complained of operated to defendant's prejudice, but whether or not it was legal error. If the court had of its own motion given the charge requested by defendant, and the addition made to said charge by the court, it would, in our opinion, have been objectionable upon the ground that it would have been singling out a witness from those testifying in the case, and calling special attention to his testimony; and it would have been a charge upon the weight of his testimony, and consequently a charge upon the weight of the testimony in the case. The law in this state is that the jury are the exclusive judges of the weight of the testimony and the credibility of the witnesses, and no interference by the court with the prerogative of the jury in these respects can be allowed. There are some exceptions to the rule thus broadly laid down, made by statute; for instance, where a homicide is shown by the evidence, and no other fact is shown in connection with it, the law implies that it was malicious, and the court should so instruct the jury. But in the cases where, by law, an artificial importance is given certain facts, the court instructs the jury upon the weight of such evidence, not because it may be in consonance with enlightened reason and experience, but because there is a plain statute requiring the court to do so. To further illustrate the exception to the rule as laid down, the court is, by statute, required to instruct the jury as to the credibility of certain characters of witnesses, as, for instance, accomplices; and, when these classes of witnesses appear in a case, the court must instruct the jury upon their credibility, and for the reason that the statute requires it to be done. Outside these statutory exceptions, the rule as stated has stood intact, and has been most jealously guarded by this court. As to the credibility of all classes of witnesses other than those to whom an artificial credibility is fixed by statute, and as to the weight of every species of evidence except such as by law is given a special weight, the jury are to be the judges, and the exclusive judges, and the court should not by its charge, to any extent, even the slightest, interfere with their prerogative. The statute of this state, which invests the accused in a...