Opinion
No. 35211
Filed May 17, 1963.
Criminal Law: Trial. An instruction which informs the jury that when there is conflict in the evidence it is its duty to reconcile the evidence if it can, and if it cannot, then to determine which is true and which is untrue, does not infringe upon the right of the jury to judge the credibility of witnesses and the weight to be given their testimony.
Appeal from the district court for Saline County: JOSEPH ACH, Judge. On motion for rehearing. See 174 Neb. 717, 119 N.W.2d 307, for original opinion. Former opinion modified. Motion for rehearing overruled.
Jack L. Craven and Martin A. Cannon, for appellant.
Clarence A. H. Meyer, Attorney General, and Cecil S. Brubaker, for appellee.
Heard before WHITE, C.J., CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
SUPPLEMENTAL OPINION
The State contends in its motion for a rehearing that this court was in error in holding in its former opinion that the giving of instruction No. 17 constituted prejudicial error. See State v. May, 174 Neb. 717, 119 N.W.2d 307. After a further consideration of the question we conclude that instruction No. 17 was free from error and that this court incorrectly held to the contrary.
Instruction No. 17 was as follows: "You are the sole judges of the credibility of the witnesses and the weight to be given to their testimony. In determining the weight which the testimony of the witnesses is entitled to receive, you should take into consideration their interest in the result of the suit, if any; their conduct and demeanor while testifying; their apparent fairness or bias or relationship to the parties, if any such appears; their opportunity for seeing or knowing the things about which they have testified; their ability to remember and relate accurately the occurrences referred to in their evidence; the extent to which they are corroborated, if any at all, by circumstances or the testimony of credible witnesses, the reasonableness or unreasonableness of their statements; and all other evidence, facts and circumstances proved tending to corroborate or contradict such witnesses. Insofar as there may be any conflict in the evidence it is your duty to reconcile it if you can; if you cannot, then to determine which is true and which is untrue, and give such weight to the testimony of any witness as in your judgment it should have under all the circumstances of the case." The effect of our former opinion was to hold that the last sentence of the instruction prejudicially infringed upon the right of the jury to judge the credibility of the witnesses and the weight to be given to their testimony.
We cited Wilson v. State, 150 Neb. 436, 34 N.W.2d 880, and Frank v. State, 150 Neb. 745, 35 N.W.2d 816, in support of this holding. We think these two cases were correctly decided but that they have no application to the instruction we have in the case before us. In those cases the instructions told the jury that it had no right to reject the testimony of any of the witnesses without good reason and that it should not do so unless the jury found it irreconcilable with other testimony which it may find to be true. These instructions were prejudicially erroneous in that the jury was told that it could not disbelieve a witness unless his evidence was irreconcilable with other testimony which it found to be true. A jury has the right, of course, to disbelieve a witness, whether or not there is credible evidence in conflict with the evidence of the witness.
It is contended here that an instruction, which tells the jury that it is its duty to reconcile conflicting evidence if it can, and if it cannot, then to determine which is true and which is untrue, infringes upon the right of a jury to be the sole judge of the weight and credibility of evidence. We do not think that an instruction, which tells the jury to harmonize conflicting evidence if it can, and if it cannot, to determine which is true and which is untrue, in any manner invades the province of the jury. The identical instruction now before us was before the court in Franz v. State, 156 Neb. 587, 57 N.W.2d 139. We there held that the instruction did not violate the rule that the credibility of witnesses and the weight to be given their testimony are for the jury and, within its province, it has the right to reject the whole or any part of the evidence of any witness. This court has approved instructions of similar import in many cases. Driscoll v. Troughton, 22 Neb. 260, 34 N.W. 497; Albright v. Brown, 23 Neb. 136, 36 N.W. 297; Ballard v. Hansen, 33 Neb. 861, 51 N.W. 295; Hirschberg Optical Co. v. Michaelson, 1 Neb. (Unoff.) 137, 95 N.W. 461. No holdings of this court have been pointed out to us, nor have we found any, which conflict with this line of cases.
We have searched the decisions of other jurisdictions on the question here presented. Our present holding is supported by the following cases: Holdridge v. Lee, 3 S.D. 134, 52 N.W. 265; Rudolph v. Lane, 57 Ind. 115; Warnack v. State, 7 Ga. App. 73, 66 S.E. 393; Smith v. State, 102 Ga. App. 685, 117 S.E.2d 546; Hengstler v. State, 207 Ind. 28, 189 N.E. 623; People v. Madden, 7 Cal. 521, 18 P. 402; Adams v. State (Tex. Cr.), 20 S.W. 548; Lancaster v. State, 36 Tex. Cr. 16, 35 S.W. 165; McLeod v. State, 128 Fla. 35, 174 So. 466; Shelton v. State, 144 Ala. 106, 42 So. 30. We have found no decisions to the contrary.
We have concluded that our former opinion was in error in holding instruction No. 17 to be prejudicially erroneous. We withdraw that part of our opinion in State v. May, supra, dealing with instruction No. 17 and substitute this opinion therefor. After making this change in the former opinion we overrule the motion for a rehearing.
FORMER OPINION MODIFIED. MOTION FOR REHEARING OVERRULED.