State v. Chandler ( 1911 )

Mr. Justice McBride

delivered the opinion of the court.

1. The failure to give the third instruction was prejudicial error. The letter received in evidence tended to show that the witness Parker had offered to swear that Roy Halley had nothing to do with the burglary, which was inconsistent with his testimony on the trial of the case at bar that defendant, Halley, and himself had committed it. Section 864, L. O. L. It does not appear that the writing was shown to witness while on the stand; but its execution was fully proved, and the State waived this requirement by failing to object on that ground, and, indeed, to- object at all.

2. Instruction 4 was technically objectionable on the ground that it used the words “great caution”; the word “great” being a suggestion as to the degree of weight which the jury should attach to evidence of the character indicated. But instruction 5 is not subject to this objection, and is a correct statement of the law.

3. The evidence of Parker on cross-examination showed that he had some hope of receiving leniency if he gave testimony for the State, and that he had been assured that if he “told the truth” something might be done for his benefit. The temptation to a man, under these circumstances, to testify to a state of facts satisfactory to the party calling him, was a matter for the consideration of the jury, as bearing upon his motives in testifying and, therefore, upon the probability of his testimony being false, and defendant was entitled to have this phase- of the case called to the attention of the jury by an appropriate instruction.

Other errors are specified, but, after careful investigation, we find them without merit; but for the reasons heretofore given the judgment of the circuit court is reversed, and a new trial ordered. • Reversed.