Opinion
March 14, 1949.
1. Criminal procedure — instruction on weight to be given testimony of accused.
An instruction to the effect that if the jury has no reason to disbelieve the testimony of the accused other than that he is the defendant, the jury must accept his testimony as the truth is properly refused.
Headnote as approved by Roberds, J.
APPEAL from the circuit court of Harrison County; L.C. CORBAN, J.
Edward Lindsey, for appellant.
The court refused instruction Number 3, which was asked for by defendant, on page 15 of the record and which reads as follows: "The court instructs the jury for the defendant that the defendant is a competent witness in his own behalf and you have no right to discard his testimony or to look upon his testimony with suspicion merely because he is the defendant. If you have no reason to disbelieve him other than the fact that he is the defendant then you should believe his testimony to be the truth."
This instruction was given in the case of Thompson, et al v. State, 130 So. 112, 114.
The above instruction #3, as requested by defendant, was clearly on the weight of the evidence and the jury should have been instructed as to the law, more clearly, where there is a direct conflict in the testimony of the defendant and the witnesses of the state.
The long time rule of construing all the instructions together, if applied in this case, would not be fulfilled in light and in view of the fact that the defendant's testimony and the testimony of the State's witnesses are in direct conflict. There is no other instruction which supplements or bears the same meaning or the same expression of the law, designed to protect the innocent.
R.O. Arrington, Assistant Attorney General, for appellee.
The appellant assigned six grounds of error, only one of which is argued in his brief; therefore, under the decision of this court assignments of error not argued are waived, Bridges v. State, 154 Miss. 489, 122 So. 533.
The court committed no error in refusing instruction No. 3. In Coleman v. State, 22 So.2d 410, (Not officially reported), with reference to a similar instruction, the court said: "This instruction, as a whole, is confusing, and is on the weight of the testimony and should not have been given."
Appellant was convicted of burglary and larceny, and sentenced to the penitentiary for five years.
On this appeal he argues only one alleged error in the lower court, and that was the refusal of the court to grant to him the following instruction:
"The Court instructs the jury for the defendant that the defendant is a competent witness in his own behalf and you have no right to discard his testimony or to look upon his testimony with suspicion merely because he is the defendant. If you have no reason to disbelieve him other than the fact that he is the defendant then you should believe his testimony to be the truth."
(Hn 1) This instruction was condemned by this Court in the cases of Coleman v. State, Miss., 22 So.2d 410, and Conn v. State, Miss., 1949, 38 So.2d 697.
Affirmed.