
    The State v. Bernard.
    1. Evidence: testimony of wife: criminal law. The testimony of •a wife in behalf of her husband in a criminal case is to be received, and her credibility is to be tested by the same rules which apply to all other witnesses, and it is error to. instruct the jury that her testimony should be examined with peculiar care.
    
      Appeal from Buchanan District Court.
    
    Wednesday, December 13.
    The defendant was indicted and convicted of grand larceny, and sentenced to the penitentiary for two years and four months. From this judgment he now prosecutes his appeal.
    
      Bruchart &'Ney and Jamison & Begun, for appellant.
    
      M. E. Quits, Attorney General, for the State.
   Beck, J.

Upon the trial of the cause in the court below, the wife of defendant testified to material facts in his behalf. The court gave the following instruction to guide the jury in the consideration of her evidence:

“ 4th. The laws of Iowa permit the wife to testify for her husband in a criminal case, but her peculiar relations to her husband render it incumbent on the jury to examine her testimony with peculiar care, and if, from the testimony, they are satisfied that what she said is true, they should give her testimony the credit of any other witness. But if, from the testimony, taken together with that of other creditable witnesses or witness, the jury are satisfied that what she said is false, or that she was mistaken, then the jury are at liberty to reject it altogether.”

This instruction is almost an exact copy of the one held erroneous in the State v. Rankin, 8 Iowa, 355. The language of the two and the effect to be given thereto are substantially the same. The instruction given in this case must, ujjon the authority of that decision, be held erroneous.

The rule announced in the State v. Rankin, which follows The State v. Guyer, 6 Iowa, 263, is that the testimony of a wife in behalf of her husband is to be received, and her credibility to be tested by the same rules which apply to all other witnesses. Tier credibility, of course, is to be considered'and weighed in view of her peculiar relation to the person on trial. ButjpeeuUa/r care is not to be exercised in weighing her testimony. That degree of high care which the law and the consciences of the jury require to be 'exercised- in considering the evidence of all witnesses, should be applied to her testimony, and no other or different. There is no pemolia/r ca/re to be brought into exercise when her evidence is weighed.

The instruction clearly tended to impair the wife’s credibility in the minds of the jury, by leading them in search of tests and rules to be applied to her evidence in order to determine her credibility, which are unknown to the law and not recogr nized by sound reason. It was, therefore, prejudicial to defendant.

Other points in the case raised by the defendant need not be considered, as the judgment for the error pointed out must be

Eeversed.  