
    The People of the State of New York, Respondent, v. John O’Brien and James Monahan, Appellants, Impleaded with William Martin.
    First Department,
    December 3, 1909.
    Trial —charge — credibility of witnesses.
    Where in a criminal prosecution there is a conflict between the testimony of police officers sworn by the People and other witnesses sworn by the defendant, it is error to separate the testimony of the police officers from that of other witnesses and to charge that police officers are presumed to tell the truth, unless the contrary is established by evidence. This, because the presumption that witnesses tell the truth applies, to ail witnesses alike, and because the presumption need not be disproved'by evidence, for the jury may take into account the appearance and conduct of the witness on the stand together with other facts and circumstances.
    Such error is cured, however, where the court "subsequently charged in substance that the jury might disbelieve the testimony of any witness, whether called by the People or b3rthe defendant, because of his demeanor upon the stand, or for any other reason, without actual evidence contradicting his statements.
    Where the defendant through his counsel stated that the subsequent charge was satisfactory, he cannot complain of the former error on appeal.
    
      Appeal by the defendants, John O’Brien and another, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against them on the 18th day of February; 1908, convicting the defendants of robbery in the second degree, and ,also from an order denying the said defendants’ motion for a new trial.
    
      R. M. S. Putnam, for the appellants.
    
      Robert S. Johnstone, for the respondent.
   Laughlin, J.:

No- question with respect to the sufficiency of the evidence'to warrant the conviction of the appellants-is presented by the appeal. A reversal is sought solely on the ground of -certain instructions given to- the jury by the trial court. The appellants and the defendant Martin were tried together and all testified in their own behalf. Martin was likewise convicted, but he accepted his sentence to the Elmira Reformatory and did not appeal. The court, in stating the claims of the respective parties on the evidence, said to the jury that the People claimed that the defendants are unworthy of belief and that their stories radically conflicted with the testimony of two police officers named, who were -called by the People, and that the testimony of one or the other of these sets of witnesses was untrue.The court then instructed the jury that it was their duty to weigh this conflicting testimony and to determine which witness or witnesses were telling the truth, and thereupon said : “ The defendants urge upon you that this case upon the part of the People is fabricated, that it originated in the hostility of the police. I charge you, gentlemen of the jury, as matters of law, that police officers are presumed to tell the truth, are -presumed to perform the duties which the law casts upon them, unless' the contrary has been established. That presumption stays with them until it is pushed out of the case by evidence that satisfied your reason and intelligence that it should be pushed out of the case.” The court should not have thus singled out the police officers upon whose testimony the People relied, and pointedly instructed the jury that as matter of law they were presumed to tell the truth, for whatever presumption of credibility there is, it attaches to all witnesses alike, and it was error to instruct the jury that such presumption remained until removed by evidence, for it may be removed by the appearance and conduct of the witness on the stand and innumerable facts and circumstances. While it is to be presumed of a witness going upon the stand that he will tell the truth and that presumption should attach to his testimony unless it be improbable, or some fact, circumstance or other reason develops in his testimony or in the presence of the jury in the course of the trial to indicate otherwise, it does not necessarily require evidence to remove it (State v. Ormiston, 66 Iowa, 143; State v. Jones, 77 N. C. 520; Crane v. State, 111 Ala. 45; 2 Thomp. Trials, § 2420; 2 Moore Facts, § 1047), because whether credibility is to be attached to the testimony of a witness is for the jury to determine and in determining it they are not confined to the sworn testimony and documentary evidence. (People v. Place, 157 N. Y. 584; People v. White, 176 id. 331.) Another vice in the charge is that it singled out certain witnesses for the People and gave emphasis to their official position, from which the jury might have inferred that they stood upon a different plane from other witnesses. It is evident, however, that tlie'learned trial justice did not intend this, and we are of opinion that if the jury received an erroneous impression therefrom, it was corrected. At the close of the charge, the court further instructed the jury at the request of counsel for the defendants, that they might disbelieve the testimony of any witness, whether he be called for the People or for the defendants “ either from his demeanor or bearing while on the stand, or from any reason that they may have in mind, without the actual production of evidence to disprove what he says.” Counsel for the defendants took an exception to that portion of the charge in which the court stated that police officers are presumed to tell the truth and that the jury must believe what they say unless evidence is produced to the contrary, and thereupon the court, addressing the jury, said: “I said to you this, gentlemen, that all witnesses are presumed to tell the. truth, until the contrary is established ; that it does not apply only to police officers, but police officers are officers of the law, and the presumption is that officers of the law perform their duty, until the contrary be established.” Counsel for the defendants then said : “ I take no exception to that point, that every witness is presumed to tell the truth — but my exception is, and this comes within the bearing of my third request to charge — that the police officers’ evidence may be doubted, when on the stand, from the demeanor or conduct on the stand, or any other circumstance or fact in the case, and that direct testimony need not be produced to' contradict their testimony.” The court then replied as follows: “ That is the law, and, if I misled the counsel into the belief that I charged.the jury that a1 police officer’s, testimony should be given more weight than that of any other witness, it is unfounded. I desire to charge that all witnesses are presumed to tell the truth, until the contrary is established, and the police officers, in their capacity of witnesses here, are-presumed to tell the truth, the-same as any other witness on the stand.” At the conclusion of this statement by the court, counsel for the defendants said, “ Yes, that’s just it, sir,” to which the court replied, “Yes, the demeanor, the character, the bearing, the weight and the credibility of all -witnesses is entirely a matter for . you to determine, gentlemen, on the question of whether you believe them or. not,” whereupon counsel for the-defendants said, “ That is entirely satisfactory now, Your Honor.” We are of opinion that the appellants are not now in a position to complain of the portions of the charge to which' reference has been made. Nor were the appellants prejudiced by the court’s expression of opinion that there was such conflict between the testimony of the police officers and of the defendants, that both could not be true, for the court in other portions of the charge clearly left it to the jury to determine the facts and also the credibility to be attached to the testimony of each witness.

The evidence clearly establishes the guilt of the appellants.

It follows, therefore, that the judgment should be affirmed.

Patterson, P. J.', Ingraham, McLaughlin and Clarke, JJ., concurred.

Judgment affirmed.  