dissent"> Condon, J.,

dissenting. I think that the defendant’s exception to the denial of his motion for a new trial should be sustained, because the verdict is clearly against the evidence. It is obvious from the transcript that the jury failed to weigh the evidence properly. If they had done so, they could not have found beyond a reasonable doubt that the defendant was the driver of the automobile.

The state had the duty of thus proving this element of the offense with which the defendant was charged. In attempting to do so it relied almost entirely upon the testimony of two police officers that the defendant had admitted to them that he was the driver of the automobile. There was also the testimony of the officers and another witness that, when the defendant was standing in the highway talking to them, the driver’s seat in the automobile was vacant and the defendant’s brother George Turcotte was occupying the right front seat. This was a circumstance, which, unexplained, the jury could consider. However, it was clearly and positively explained by the defendant who testified that George was the driver and that he, George, had moved out of the driver’s seat and over to the right after the accident. In this, defendant was corroborated by the uncontradicted testimony of his mother and his brother Elmer Turcotte, who were in the back seat. Unless these corroborating witnesses were unworthy of belief, any inference unfavorable to the defendant, from the circumstance of the vacant driver’s seat, necessarily dropped out of the case.

There is nothing in the record to indicate that these corroborating witnesses were impeached in any way or that their testimony was inherently unreliable or improbable. Their relation to the defendant may indicate an interest, *125 but it does not of itself show bias. As the trial justice well said in charging the jury: “A person may have an interest and yet it does not follow, necessarily, that that person is biased or will give you anything but an accurate statement of the facts as that person may have observed them.” Here it is significant that the testimony of Mrs. Turcotte and-Elmer is both against as well as in favor of such interest of kinship. It tends to exculpate one near kin by inculpating another equally near. It seems to me that this adds greatly to the weight of their testimony and also strengthens and confirms its reliability.

Unless there was something in the record to justify disregarding completely the testimony of those corroborating witnesses, it must be credited. O’Leary v. Wangensteen, 175 Minn. 368. The fact that a witness is interested in the outcome of the litigation does not permit the court or jury to reject his otherwise unimpeached testimony. Olsen v. Hoff-man, 175 Minn. 287. This court has said that testimony which is uncontradicted and contains no inherent improbabilities or indications of error must be taken as true. Rostron v. Rostron, 49 R. I. 292, 294. See also Tiffany v. Morgan, 73 A. (R. I.) 465. These standards of evaluating testimony ought to be adhered to, even more firmly in criminal cases, especially where it is a question, as here, whether the state has proved, beyond a reasonable doubt, all the essential elements of the crime charged.

The circumstance of the vacant driver’s seat, therefore, would not alone be sufficient to support the verdict. But the next question is, what support does the verdict derive from the testimony of the police officers that the defendant admitted he was the driver? This evidence properly goes into the scales against the testimony of the defendant denying that he ever made any such admission, and asserting that his brother George Turcotte was the driver of the automobile.

If that were .all the evidence which went into the scales against the state’s evidence, it might well be that the jury’s verdict should stand. But to the defendant’s testimony we *126 must add the strong corroborative testimony of his mother and his brother Elmer. Their testimony not only negatives the charge that the defendant was the driver of the automobile, but it also definitely and unequivocally affirms the fact as to who was such driver.

John H. Nolan, Attorney General, Guillaume L. Parent, Assistant Attorney General, for State. Frank H. Wildes, for defendant.

Weighing all of this evidence in accordance with the law as given to them by the trial justice, the jury could not, in my opinion, have found that, beyond a reasonable doubt, the defendant was the driver of the automobile. In doing so either they failed to weigh the evidence properly, or they erroneously conceived it to be the duty of the defendant to prove his defense rather than the duty of the state to prove the charge against him beyond a reasonable doubt. In either event, substantial justice requires that at least he be given a new trial.

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