
    [No. 1,039.]
    THE STATE OF NEVADA, Respondent, v. ANTOINE VASQUEZ, Appellant.
    Criminal Law — Testimony oe Defendant — Instructions.—The court instructed the jury, that in all cases the testimony of the defendant, in his own behalf, should be received “with great caution; for when one is being tried for a capital offense, the temptation to pervert or distort the facts in favor of himself is very great:” Held, erroneous.
    Verdict Recommending Defendant to the Mercy oe the Court — ■ Duty oe Juby. — field, that the court should have disregarded the request of the jury for instructions as to their duty in recommending the defendant to the mercy of the court. The duty of the jury is to find a verdict as to the guilt or innocence of the defendant.
    Appeal from tbe District Court of the Sixth Judicial District, Eureka County.
    The facts appear in the opinion.
    
      B. M. Beatty, for Appellant.
    
      M. A. Murphy, Attorney General, for Respondent. . •
   By the Court,

LEONARD, C. J.:

Appellant was convicted of murder of the second degree. This appeal is taken from the judgment and from an order overruling a motion for new trial. At the trial appellant testified in his own behalf, and in substance stated that, at the time of. the homicide, he and Garcia, -.the deceased, were friends; that he had no reason for killing him, and no desire to do so, and that Garcia’s death was the result of an unintentional discharge of his pistol.

The court instructed the jury, if they believed from the evidence, that the deceased met his death by the unintentional discharge of tbe pistol they must acquit tbe defendant; but tbe following instruction was also given:

“You are instructed that in tbe trial of all indictments, complaints, and other proceedings against persons charged with tbe commission of crimes or offenses, tbe person so charged shall, at bis own request, but not otherwise, be deemed a competent witness; tbe credit to be given to bis testimony being left solely to tbe jury, under- tbe instructions of tbe court.
“Tbe foregoing is a copy of the law of this state giving defendants tbe privilege of testifying in their own behalf; and from it you will observe that you are tbe sole judges of tbe degree of credibility which such testimony shall receive; and you are instructed that you are at liberty to believe all tbe testimony of tbe defendant, or you are at liberty to disbelieve tbe whole thereof, or you may believe a portion of bis testimony and disbelieve a portion. In all cases, jurors should receive such testimony with great caution — for when one is being tried for a capital offense tbe temptation to pervert or distort tbe facts in favor of himself is very great.”

In our opinion, tbe recent decision of this court in tbe case of The State v. Johnson and O’Brien, is decisive of this appeal, and that on principle, as well as upon tbe authority of that case, tbe last portion of tbe instruction quoted can not be upheld. Courts can not so charge a jury as to impress upon their minds that any witness has testified falsely. Jurors may be informed as to tbe matters to be considered in determining tbe credibility of witnesses, but they can not be instructed, directly or indirectly, that any witness has perverted or distorted tbe facts. And when a defendant in a criminal case makes himself a witness, be has tbe 'right to have bis testimony received and considered according to tbe rules adopted in relation to other witnesses. Tbe last part of tbe instruction under consideration advised tbe jury to look upon tbe testimony of defendant with suspicion because be was charged with a capital offense. An innocent person may be charged with crime. If so, bis case is indeed a rare exception, if be is tempted to distort tbe facts, because truth will then serve him best.

We tbink, also, that the court should have disregarded the request of the jury for an instruction as to their rights and duties in recommending the defendant to the mercy of the court. The sole duty of the jury is to declare by their verdict whether the defendant is guilty or not guilty.

The judgment and order appealed from are reversed, and the cause is remanded for a new trial.  