Costner v State

Costner v State
1932 OK CR 105
11 P.2d 769
53 Okl.Cr. 328
Decided: 05/21/1932
Oklahoma Court of Criminal Appeals

(Syllabus.)

Trial Instructions Error to Single out Defendant and Comment on Weight to Be Given His Testimony.

Appeal from County Court, Texas County; L.E. Tryon, Judge.

Dewey Costner was convicted of selling intoxicating liquor, and he appeals. Reversed and remanded.

Hughes & Dickson, for plaintiff in error.

The Attorney General, for the State.

CHAPPELL, J. Plaintiff in error was convicted in the county court of Texas county of selling intoxicating liquor, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of 90 days.

Page 329

Defendant complains that the court erred in giving the following instruction:

"You are further instructed that the court has permitted certain testimony to go before you introduced by the state for the purpose of impeaching the evidence of the defendant, and in this connection you are instructed that such evidence may be considered by you for the purpose of determining the credibility of the defendant as a witness, but such testimony is no evidence whatever of the defendant's guilt."

This court has uniformly held that it is reversible error for the trial court to single out the accused and instruct upon the credibility of his evidence. Mitchell v. State, 2 Okla. Cr. 442, 101 P. 1100; Clark v. State, 4 Okla. Cr. 368, 111 P. 659; Heacock v. State, 4 Okla. Cr. 606, 112 P. 949; Peck v. State, 5 Okla. Cr. 104, 113 P. 200; Smith v. State, 5 Okla. Cr. 67, 113 P. 204; Williams v. State, 53 Okla. Cr. 285, 10 P.2d 731.