Thompson v. State , 73 Miss. 584 ( 1895 )

Cooper, C. J.,

delivered the opinion of the court.

By the first instruction given for the state, the court informed the jury that a confession freely and voluntarily made is among the best evidence known to the law, and, if the jury believe, from tbe evidence in this case, that defendant did make such a confession, then they are authorized to consider this in connection with the other evidence in the case, and if, from all the evidence, they believe he did take, steal and carry away the mare, they should find the defendant guilty.”

We have never perceived upon what principle the trial courts have acted in singling out particular portions of the evidence in a cause, and telling the jury that it ought or might consider this, that or another part of the evidence, in connection with the other evidence, in reaching a verdict. By admitting the evidence the court has declared its competency, and the jury should be left to its function of determining the weight and effect to be given to it. Instructions, however, which do no more than this cannot be said to be erroneous, although it would be by far the better and safer practice to refrain from giving them. Cheatham v. State, 67 Miss., 335. But when the court not only singles out particular evidence, but proceeds further, and informs the jury that it is of a class most highly esteemed by the law — that is, of the highest or the best or the strongest character — this is a clear invasion of the province of the jury, and is expressly prohibited by law. The statute expressly provides that ‘ the j udge in any cause, civil or criminal, shall not sum up or comment on the testimony or charge the jury as to the weight of evidence, but, at the request of either party, he shall instruct the jury upon the principles of law applicable to the case.” Code 1892, §732. The instruction given in this case has been repeatedly condemned by this court. Brown v. State, 32 Miss., 433; Hogsett v. State, 40 Miss., 522.

We are urged to affirm the judgment notwithstanding the instruction, but the sufficient reply to this is that we cannot say with confidence that no barm resulted to the appellant from the erroneous instructions. Whatever view we may entertain as to the weight of the evidence, the jury might,, if it believed the testimony of the defendant, have found him not guilty. If the state’s evidence was sufficiently strong to impel the jury to convict without the constraint of the opinion of the judge, its representative should have stood on the evidence alone, and left the jury to reach the verdict, guided only by its own opinion of the weight and effect of the confession.

Judgment reversed.