
    The State v. Johnagen.
    1. Practice: evidence: juey. Whether or not certain admissions previously made by the prosecuting witness in a criminal trial, contradictory to his testimony, would have the effect to impair his credit as a witness, was held to be a question for the jury.
    
      Appeal from Boone District Gov/rt.
    
    Wednesday, April 7.
    Indictment for robbery. Trial, verdict, judgment, and the defendant appeals.
    
      Kidder & Oroolcs, for appellant.
    
      J. F. McJwihm, Attorney General, for the State.
   Servers, J.

-The robbery was effected by striking the prosecuting witness a violent blow on the head with a club or some other instrument, and while he was unconscious. taking from his person certain articles of personal property. The following instruction was given the Jm7-

“ 10th. The defendants have introduced different witnesses to show that Ericson, the prosecuting witness, soon after the alleged robbery, told them that he did not know who it was that wounded and robbed him, and the state introduced witnesses to show that at the time Ericson made these statements he was suffering much pain from his wounds, and was greatly debilitated, and was partially or temporarily deranged, and that he was greatly frightened and in fear of being injured; and if you find from the evidence that he did so state that he did not know who it was who struck and robbed him, you will then carefully consider all the facts and circumstances as d isclos.ed by the evidence, and if you find that at the time he made these statements, if he did make them, he was suffering great pain and was partially deranged .in mind, and was not fully conscious of wbat he said, then it would not impair or affect bis credibility in any way if be did under such circumstances make contradictory statements from bis testimony; or if you find bis mind was partially deranged or impaired, and be was laboring under .the imaginary impression that be was in great danger of being injured personally, and of being again robbed, and that when talking to strangers or persons in whom be did not have full confidence be, from policy, told such persons that be did not know who robbed him, then it should not affect or impair bis credit as a witness. But if you find that the prosecuting witness, when in full possession of bis faculties, of bis own accord, made statements to such witnesses that be did not know who robbed him, it is á circumstance for you to consider in determining what weight you will give bis testimony.”

Under the evidence and this instruction the jury were authorized to find: First. That the prosecuting witness stated on several occasions after the robbery, to different persons, be did not know who it was that struck and robbed him; Second. That such statements were made when be was suffering great pain and was partially deranged or greatly frightened and in fear of being injured; and, Third. That be from policy, under the circumstances stated in the instruction, made such statement. This being so, the effect or consequence of such finding becomes exceedingly important. Instead of leaving this to be determined by the jury, the court, as a matter of law, said wbat the effect would be. Eor the court said that if either of the two last propositions were found to be true, then the effect would be not to “ impair or affect in any way the credibility ” of the prosecuting witness. This, we think, was a question for the jury and not the court. It was for them to say bow far or to wbat extent the credibility of the witness was affected by the matters referred to. The disparaging fact being found, it was for the jury to say whether or not it bad been sufficiently and satisfactorily explained so that the credibility of the witness was in no way affected thereby. We think the instruction is erroneous, and that it is not cured by the 11th instruction, which does contain a correct proposition.

Reversed.  