
    SUPREME COURT—APP. DIV.—FIRST DEPT.
    Dec. 3, 1909.
    THE PEOPLE v. JOHN O’BRIEN.
    (119 New York Supplement, 788.)
    (1) . Trial—Charge to Jury—Must Not Single Out Class of Witnesses.
    It is erroneous for the court to pointedly instruct the jury that police officers, upon whose testimony the people relied, as a matter of law, were presumed to tell the truth, as any presumption of credibility attaches to all witnesses alike.
    (2) . Same.
    It was also erroneous to instruct the jury that such presumption remained until removed b$r evidence, as it might be removed by appearance and conduct of the witness on the stand.
    (3) . Same—Cure of Erroneous Instruction.
    The error is corrected, however, where the judge states that if he misled the counsel into the belief that he charged that a police officer’s testimony should be given more weight than that of any other witness, it is unfounded, and that he desired 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, are presumed to tell the truth, the same as any other witness on the stand.
    Appeal from Court of General Sessions, New York County.
    John O’Brien, James Monahan, and one Martin were convicted of robbery in the seoond degree, ¡and defendants O’Brien >and Monahan appeal.
    
      R. M. S. Putnam, for 'appellants.
    
      Robert S. Johnstone, for the People.
   Lattchliit, 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; hut 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 easts upon them, unless “the contrary has been established. That presumption shays 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 juiy that as matter of law .they were presumed to tell the truth, for whatever presumption of credibility there is attaches to all witnesses ¡alike; and it was error to instruct the jury that such presumption remained until removed by evideuce, for it may be removed by the appearance and conduct of the witness on the stand and innumerable facts land 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 Ms 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, 23 N. W. 370; State v. Jones, 77 N. C. 520; Crane v. State, 111 Ala. 45, 20 South. 590; 2 Thompson on Trials, § 2420; 2 Moore on Facts, § 1047), because whether credibility is to be attached to the te-s-timomy 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, 52 N. E. 576; People v. White, 176 N. Y. 331, 68 N. E. 630).

Another vice in the charge is that it -singled out certain w-ifi nesses 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 the learned trial justice did not intend this, and we -aire of opinion that, if the jury received an erroneous impression therefrom, it was -corrected. At the -close e-f 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 fo-r -the People or for the defendants, “ either from Ms -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 siaiys.” 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 is established.”

Counsel for the defendant then said:

“ I take exception to that point, that every witness is presumed to tell the truth; but my exception is, and this cornels wiithiin the bearing of my third request to -charge, that the police officers’ evidence may be doubted, when on the stand, from the demeanor and conduct on the stand, or any other circumstance or fact in the case, and that direct testimony need not be produced- to contradict th-eir 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 a 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 defendant isaid, “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 defendant said, “ That is entirely satisfactory now, your honor.” ,We are of opinion that the appellants are not now in position to complain of the portions of the charge to which reference has been made. Hor 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.

All concur.  