The credibility of the witnesses and the weight of the evidence are for the jury, and not for the appellate court, although it may differ from the jury as to the weight of the evidence, where it is conflicting. INDICTMENT for murder, tried before Hoke, J., at January Term, 1900, of WAYNE. The prisoner was indicted for murder of Charles Lewis Cawthorne in Johnston County. Former trial reported (1117) in 125 N.C. 615. A new trial having been granted, his Honor for reasons satisfactory to himself moved the trial to Wayne County, where the prisoner was again convicted of murder in the first degree. The killing was admitted โ the testimony of the prisoner tended to show justification, certainly not more than manslaughter, while that of the State tended to show premeditation and deliberation on the part of the prisoner.
For more than one hundred years, this Court โ in conformity with most other state and federal courts โ has approved a "missing witness" instruction to the effect that the jury "may draw an inference against a party who fails to call a witness whose testimony would apparently be useful to that party." State v. Trombly, 148 Vt. 293, 304, 532 A.2d 963, 970 (1987); see Seward v. Garlin, 33 Vt. 583, 592-93 (1861) (where "ordinary and natural course" would be to introduce witness's testimony, party's failure to do so leads to "irresistible conclusion . . . that he feared at least the witness would not support his other testimony"); State v. Fitzgerald, 68 Vt. 125, 127, 34 A. 429, 429 (1896) (adverse inference may be drawn from failure to produce witness); State v. Smith, 71 Vt. 331, 333-34, 45 A. 219, 220 (1899) (same); Choiniere v. Sulikowski, 126 Vt. 274, 279, 229 A.2d 305, 309 (1967) (same). The classic formulation of the rule was stated by the United States Supreme Court in Graves v. United States, 150 U.S. 118, 121 (1893), as follows: "The rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable."
They must exercise judicial discretion." (1 Words Phrases, 475, citing State v. Smith, 23 Mont. 44, 57 P. 449 (1899).) "To regard or comment upon as worthy of acceptance, commendation or favorable attention; form or express a favorable judgment concerning; treat, receive or present with favor."
Every defendant should be made to feel that the solicitor is not his enemy, and that he is being treated fairly. S. v. Smith, 125 N.C. 615, 34 S.E. 235; S. v. Tucker, supra. Counsel have wide latitude in making their arguments to the jury. S. v. O'Neal, supra; McLamb v. R. R., supra; S. v. Little, supra.
Every defendant should be made to feel that the solicitor is not his enemy, and that he is being treated fairly. S. v. Smith, 125 N.C. 615, 34 S.E. 235; S. v. Tucker, supra. Counsel have wide latitude in making their arguments to the jury.