¶1With deference I am impelled to dissent from the conclusion of the majority in this case and I do so not because I think the appellant is innocent but because I think that the decision of the Court has the effect of repealing Sec. 1691, Code of 1942, which is as follows: “The accused shall be a competent witness for himself in any prosecution for crime against him; but the failure of the accused, in any case, to testify shall not operate to his prejudice or be commented on by counsel.”
¶2By Instruction No. 1 given the State the first portion of the above section of the Code is virtually nullified. And the jury in effect was told that they might disbelieve the appellant simply because he is interested in the outcome of the case. This Court has on several occasions had occasion to express itself with reference to a similar instruction particularly where the defendant *33was the only witness who testified on the facts of the case. In Buckley v. State, 62 Miss. 705, 706-707, the Court said: “The jury had no right to disregard the testimony, of the defendant merely because he was such and deeply interested in the result. The statute makes a. defendant a competent witness, and while it is for the jury to determine the weight to be given to his evidence, it is not allowable for the court to annul the statute in effect by admonishing the jury of the interest the defendant has in the result and authorizing it capriciously and wantonly to disregard his evidence completely and entirely because of such interest. This interpretation may have been put on the sixth instruction, although not so intended by the learned judge who gave it, and it was ■not cured by the proper instructions for the accused on the same subject. (.Emphasis mine.) His own testimony may be the only shield of an innocent person. A defendant has the right to submit his testimony to the .jury to be judged of by it, uninfluenced by any suggestions of its probable falsity or an authorization to the jury to throw it aside as unworthy of belief because of the strong temptation to the defendant to swear falsely. There is little danger that juries will be unduly influenced by the testimony of defendants in criminal cases. They do not need any cautioning against too ready credence to the exculpation furnished by , one on trial for a felony. The accused should be allowed to exercise his right to testify unimpaired by any suggestions calculated to detract from its value in the estimation of the jury.”
¶3In the case just quoted from the defendant was the only witness in his behalf on the facts and the Gourt there said that the error was not cured by instructions for the accused, yet the Court in this .case has done just exactly what Judge Campbell held against in the Buckley ease, that is, it has held that an instruction for the accused in this case cured, the error.
¶4*34In the case of Woods v. State, 67 Miss. 575, 576, the Court said: “The case must be reversed, however, because of the error of the court below in granting the one charge asked by the state. The appellant was the only witness offered by the defense, and this one charge is clearly obnoxious to the condemnation pronounced in Buckley v. The State, 62 Miss. 705. The only safety of the defendant lay in his own testimony, and, as was said with great force in the case just referred to, ‘he had the right to submit his testimony to the jury to be judged of by it, uninfluenced by any suggestions of its probably falsity, or an authorization to the jury to throw it aside as unworthy of belief because of the strong temptation of the defendant to swear falsely.’ ”
¶5In the case of Pigott v. State, 107 Miss. 552, 558-559, 65 So. 583, the Court said: “Appellant complains that the court erred in giving the second instruction for the state, which reads:
“ ‘The court instructs the jury that you do not have to believe a witness just because he testified in the case, and, in passing on the testimony of any witness, you may take into consideration the interest of such witness, if he has any, and believe or disbelieve any witness as you believe the truth is from all the testimony in the case. ’
‘ ‘ This instruction should not have been granted. Tinder the facts of this case, it is necessarily directed to the testimony of appellant. It singles out and marks him for discredit. Such instructions have been condemned by this court. Buckley v. Dunn, 67 Miss. 710, 7 So. 550, 19 Am. St. Rep. 334; Woods v. State, 67 Miss. 575, 7 So. 495; Townsend v. State, 12 So. 209.”
¶6In Jones v. State, 154 Miss. 640, 645, 122 So. 760, the Court said: “Where the appellant is the only witness in his own behalf, and is clearly the only person connected with the trial who has interest in the case, it is error for the court by this instruction to point out the *35fact of Ms interest as a matter to be considered by tbe jury in determining Ms guilt or Ms innocence. TMs rule, as to tMs instruction, is upheld in the cases of Buckley v. State, 62 Miss. 705, Woods v. State, 67 Miss. 575, 7 So. 495, Townsend v. State (Miss.), 12 So. 209, and Pigott v. State, 107 Miss. 552, 65 So. 583. ’ ’
¶7The Court quoted with approval from the Townsend case as follows: ‘ ‘ The defendant was not the only witness on his behalf, but he was the only one interested in the result of the jury’s verdict, in any proper sense. The instructions unmistakably singled him out, and marked him for discredit by the jury. It is not true, moreover, that, because of his interest in the result of the verdict, the jury might arbitrarily reject his evidence, and refuse to consider it.”
¶8In the case of Smith v. State, 90 Miss. 111, 43 So. 462, 122 Am. St. Rep. 313, the Court said in discussing tMs instruction: “The court charges the jury that they are the sole judges and weighers of the testimony and the credibility of the witnesses and in passing upon the testimony of any witness the jury may take into consideration the interest such witness may have in the result of the trial, if any, such (as) has been shown by the testimony in the case. …
¶9“We think it was error to give the state’s second instruction. The defendant was the only witness to the fact in his own behalf, and the charge would have been no stronger if it had called his name and cautioned the jury, in its own language, to ‘take into consideration the interest such witness may have in the result of the trial. ’ His testimony should not be so hampered by such express reference. ’ ’
¶10In the case of Chatman v. State, 102 Miss. 179, 59 So. 8, with reference to a similar instruction, the Court said: “Appellant was the only witness who testified in her behalf in the court below, and her evidence, if believed by the jury to be true, entitle her to an acquittal. Con*36sequently, as held by this court in Smith v. State, 90 Miss. 111, 43 South. 465, 122 Am. St. Rep. 313, and. Gaines v. State, 48 South. 182, the granting of the second instruction requested on behalf of the state was fatal error. ’ ’
¶11In Gaines v. State, 48 So. 182, 183, not reported in the State Reports, this Court said: “Appellant being the only witness in his own-behalf and testifying-to -a state of facts which, if believed by the jury, would result in his acquittal, it was fatal error to give the second and third instructions for the state. These charges, authorizing the jury to consider the interest of the witnesses and the fact that they had sworn falsely to some material fact, were, of course, pointed straight at the defendant, and are plainly condemned in Woods v. State, 67 Miss. 575, 7 South. 495, and Smith v. State, 90 Miss. 111, 43 South. 465, 122 Am. St. Rep. 313.”
¶12The controlling opinion cites and relies on the case of Vails v. State, 94 Miss. 365, 48 So. 725, hut that decision does not conflict with any of the cases cited in this dissent for the reason that Vails was not the only witness who testified in his behalf.
¶13The controlling opinion says' that instruction No. 22 obtained by the appellant cured the error in the State’s instruction in this Case. What the controlling opinion ignores is the fact that this Court has held that the granting of other instructions does not cure the error in the State’s instruction. Furthermore the controlling opinion says that the appellant’s instruction No. 22 points out the defendant in the case and therefore cured the error of the State’s instruction in pointing him out. In my opinion,-the argument in the controlling opinion is wholly untenable and completely cuts off the defendant from any effort to try to get the jury straightened out on the law of the case. The controlling opinion admits that the granting of the State’s instruction No. 1 was error hut dismisses the matter with the mere state*37ment that the error was harmless and nonprejudicial. Such a statement is entirely refuted by the numerous cases which I have hereinabove cited. This Court has repeatedly held that such an instruction is erroneous and that the error is not harmless and nonprejudicial. Regardless of everything said in the controlling opinion I think that in view of the authorities herein cited, the appellant is entitled to another trial under correct instructions and that the case should be reversed and remanded.