¶1-concurring.
¶2I have joined with the majority in the opinion adopted in this case because I think it goes far enough for the purpose, on the record, of determining the issues presented by the appeal. However as to the instruction which is brought into question I am persuaded that its giving in any civil or criminal case is prejudicial error and that it would have been well to so state in the opinion. I cannot conceive of a case wherein it could be said that' it could not be calculated to be misleading and confusing to a jury.
¶3If by its terms it may be said that the instruction is confusing, conflicting, and calculated to mislead, I fail to see how this court can say that it did not so confuse and mislead.
¶4This court has never departed from the proposition that to give, on material matters, contradictory or conflicting instructions is prejudicial error. It cannot be any the less error if the contradiction or conflict appears in a single instruction. I think it a fair statement that where it is clear that an instruction could have misled a jury such instruction must be deemed prejudicial. This proposition is axiomatic.
¶5The portion of the instruction complained of in this case is the following: “Yet you have no right to reject the testimony of any of the witnesses without good rea*298son, and should not do so, unless you find it irreconcilable with the other testimony which you find to be true.” This is a sentence of an instruction which earlier therein correctly informed the jury that they were the sole judges of the credibility of the witnesses and of the weight to be given their testimony.
¶6Can this sentence be anything less than a restriction upon and an inhibition against the right of a jury to test the credibility of each witness on his own merits? Does it not effectually inform the jury that they must accept the testimony of each and every witness as true in the absence of other testimony found to be both irreconcilable and true?
¶7It was held in Wilson v. State, 150 Neb. 436, 34 N. W. 2d 880, and I think correctly, that notwithstanding the earlier directions, explanations, and admonitions of the instruction, this portion of the instruction failed to leave the jury free to reject testimony as false or incredible even though they may have disbelieved it or had a reasonable doubt as to its falsity or credibility. I am of this opinion notwithstanding a contrary holding of this court in dealing with this particular instruction in this same connection in Moore v. Pacific Mutual Life Ins. Co., 128 Neb. 605, 259 N. W. 916. A question propounded in the opinion therein is as follows: “Besides, how could they decide that any witness had testified falsely except by comparison of his testimony with other facts testified to or by the implication of other testimony?” It imports its own answer but the imported answer is insufficient. It fails to embrace, for instance, the discredit which may appear from the very nature of the testimony under a given set of circumstances or which may result upon cross-examination.
¶8■ In a criminal case conviction may be had only on evidence and the proof must be beyond a reasonable doubt. This instruction, in a criminal case where the State has adduced evidence on an element or elements necessary to be proved and the defendant adduces none, requires *299that the jury shall accept the evidence of the State as true. It does not under such circumstances permit of rejection of all or any part of such evidence no matter how fantastic or incredible it may appear on its face' and no matter that it may have been completely discredited by cross-examination.
¶9A defendant in a criminal case is not required to prove his innocence. He is not required to disprove his guilt or any of the elements of the charge against him. If the charge or any of its elements lacks proof by evidence beyond a reasonable doubt, he may not properly be found guilty.
¶10In application of the inhibition of this instruction to the following hypothesis let us see what the end result would be. A witness for the State has testified with regard to an element of a criminal charge and nothing appears from the witness or his testimony to suggest incredibility. The defendant or a witness' then gives directly opposite testimony which testimony has the appearance of incredibility yet it has enough of quality and substance to cause the jury, not to accept it as true, but to have a reasonable doubt as to its truth or falsity. Cert tainly the defendant is entitled to the benefit of that doubt, but the jury are told by this instruction that in such circumstances they may not reject the testimony of the witness for the State unless they find that the testimony of the defendant or his witness is true.
¶11In a case where witnesses testify on opposite sides-of a case and to opposite effect and it is readily apparent to the jury that the testimony of each is fully and equally incredible the inhibition of the instruction is that neither may be rejected for the explicit reason that the opposite is not found to be true.
¶12If it be suggested that prejudicial error does not exist in a case where the testimony which under the instruction must be accepted as true is testimony of the. defendant or his witnesses, a sufficient answer is that -any instruction with regard to the manner of weighing testi*300mony and credibility of witnesses applies to witnesses for the State as well as to a defendant and his witnesses. The State has as much right to expect that a jury in a criminal case will be instructed correctly and properly as the defendant. It may not well be said and it does not follow that error against the State may not be regarded as prejudicial because from an adverse verdict it may not on appeal obtain a reversal of the judgment on such verdict.
¶13dissenting.
¶14I dissent from that part of the majority opinion which holds that the giving of instruction No. 15, particularly the last sentence thereof, “was prejudicial error.” It likewise follows that I do not agree with the concurring opinion which holds the giving of this instruction, in any civil or criminal case, would be prejudicially erroneous and require reversal.
¶15I do not necessarily dissent from that part of the majority opinion which reverses and remands the cause to the district court for retrial. This, for the reason that there are other errors complained of which might or might not make such decision proper. However, in view of the majority holding, it would serve no useful purpose to decide that question.
¶16Instruction No. 15, as given by the court, is as follows:
¶17“It is your duty to scrutinize carefully and to weigh dispassionately, the testimony of all the witnesses giving the several parts of the evidence such weight as in your judgment they should receive.
¶18“Weight of evidence depends upon the credibility of witnesses, their accuracy of observing and remembering, their interest, bias or prejudice, if any, and their means of knowing the matters concerning which they testify.
¶19“You are the sole judges of the credibility of the witnesses, and the weight to be given their evidence. You are not bound to accept as true any statement simply because it is sworn to by the greater number of witnesses, *301nor are you bound to accept the testimony of any witness as absolutely true, if for any good reason it appears to you unreliable or untrue. Yet you have no right to reject the testimony of any of the witnesses without good reason, and should not do so, unless you find it irreconcilable with the other testimony which you find to be true.”
¶20This instruction deals with the credibility of witnesses and the weight of their evidence. It is for the purpose of informing the jury of their duty and responsibility in regard thereto. That is strictly a jury duty and function and should not be encroached upon by the trial judge either by comment or otherwise. I agree that the trial court was in error by adding these words to the last sentence of this instruction: “… and should not ■do so, unless you find it irreconcilable with the other testimony which you find to be true.” This language erroneously qualified the jury’s privilege of rejecting the testimony of any witness for good reason.
¶21But every error does not necessarily require reversal. Before a reversal should be entered because thereof it must appear from the record that the error complained of can be said to have prejudicially affected the rights of the party complaining thereof.
¶22We have recently dealt with this instruction- in cases where the same or similar language was used.
¶23In Wilson v. State, 150 Neb. 436, 34 N. W. 2d 880, we held, where there was no irreconcilable testimony or testimony to the contrary, that the giving of such an instruction was prejudicially erroneous. This, in my opinion, is correct in a criminal case.
¶24In Frank v. State, 150 Neb. 745, 35 N. W. 2d 816, we held that it is ordinarily prejudicial error to give such an instruction. This case was reversed on other grounds and, necessarily, no occasion arose to discuss whether the instruction was prejudicially erroneous. In my judgment that case did not decide the question now before us. It only sought to advise the trial judge not to use the same *302language on retrial. The same is true of the companion case of Swanson v. State, 150 Neb. 761, 35 N. W. 2d 826.
¶25■ In Knihal v. State, 150 Neb. 771, 36 N. W. 2d 109, we held the giving of such an instruction prejudicial error but brought it within the scope of our holding in Wilson v. State, supra, although language is used therein which supports the holding of the majority.
¶26In my opinion the only case we have decided directly sustaining the majority view is that of Jennings v. State, 150 Neb. 828, 36 N. W. 2d 268. Therein we considered the instruction to be such a plain error that we took note thereof and, under a factual situation similar to that in the case at bar, held the giving of the instruction to be “prejudicially erroneous.” I now think we were in error in doing so.
¶27• In both the Knihal and Jennings cases the giving of this instruction was not here presented as error but under :our rule 8 a 2 (4) we took note thereof.
¶28It seems significant to me that in the cases recently decided which support the majority opinion, wherein we did not have the advantage of briefs because we took note of this instruction as a plain error under our- rules, we did not take into consideration our previous holdings on similar or like instructions wherein, under’situations such as here, we held them not to be prejudicially erroneous.
¶29In Moore v. Pacific Mutual Life Ins. Co., 128 Neb. 605, 259 N. W. 916, which is a civil suit on an insurance policy, the court said: “Appellant criticizes the last sentence only, which reads: ‘Yet you have no right to, reject the testimony of any of the witnesses without good reason, and should not do so until you find it irreconcilable with other testimony you may find to be true.’
¶30“Appellant says that this part of the eighth instruction tells the jury they must accept testimony they have found under the sixth instruction to be false because there may be no other testimony on the particular matter and therefore no testimony with which to compare it *303and decide it ‘irreconcilable.’ This is splitting hairs too fine for us to believe the parts could be seen by the jury. Besides, how could they decide that any witness had testified falsely except by comparison of his testimony with other facts testified to or by the implication of other testimony? In our opinion the error assigned is not tenable. The instruction complained of is held free from prejudicial error.”
¶31And in Asbra v. State, 144 Neb. 146, 12 N. W. 2d 845, which is a criminal action, this court said: “On the matter of the credibility of witnesses the trial court instructed the jury, in part, as follows: ‘You are the sole judges of the credibility of the witnesses and of the weight to be given their testimony. You are not bound to accept as true any statement' simply because it is sworn to by the greater number of witnesses, nor are you bound to accept the testimony of any witness as absolutely true, if for any good reason it appears to you unreliable or untrue. Yet you have no right to reject the testimony of any of the witnesses without good reason and should not do so unless you find it unreconcilable with other testimony which you find to be true.’ The defendant attacks the last sentence of this instruction and •argues that the jury have.the right for good reason to reject the testimony of any witness and that, as a condition to rejection, it is not necessary that the jury find it ‘unreconcilable with other testimony’ which they ‘find to be true.’ We are unable to see where the instruction was prejudicial to the defendant. The evidence was circumstantial and there was in it but little dispute on material matters. The question to be determined from the circumstantial evidence was whether or not the defendant was guilty of the offense. The defendant testified in his own behalf and denied that he had ‘anything to do with the setting of the fire ’ When applied to his denial the jury were directly instructed that they should not reject his denial as untrue unless it was found un*304reconcilable with other testimony which they found to be true.” (Italics mine.)
¶32Here the evidence is in conflict on issues which determine the guilt or innocence of the defendant. It was the jury’s duty and function to consider this irreconcilable conflict and decide which side was telling the truth. That, in my judgment, is the effect and purpose of the language used. While the court should not have instructed the jury as it did, nevertheless, the language applies equally to the evidence on both sides and, when so applied, it does not, in-my judgment, prejudice the defendant in any of his rights.
¶33In my opinion our prior holdings, particularly in the Asbra case, are correct and should be followed. Certainly they justified the trial court in using the language which is here held to be prejudicially erroneous.