But the court must (without, however, giving too much prominence to this fact) instruct them that they should," or that they may, 10 consider the facts that he is interested in the outcome of the trial, and is testifying in his own behalf, in determining his credibility.

The jury should regard, among other things, the inherent probability or improbability of his statements, his intelligence or want of intelligence, his opportunities for knowledge or business methods, and to what extent he has been corroborated by other evidence.1

11

Speaking generally the jury must determine the credibility of

pointing out the force and cogency of the incriminating circumstances, is very objectionable. Hickory v. United States, 160 U. S. 408, 40 L. ed. 474, 16 Sup. Ct. 327. A charge that while the law says defendant is a competent witness and may testify in his own behalf, and the jury should not capriciously disregard it, this does not mean that they should believe it, but only that they should consider it, and ascertain to the best of their judgment whether it is true, and, if true, they should act on it as on truth from any other source, and, if they should not believe it, they should reject it, they being the sole judges of the truth of the evidence, is not erroneous. Harrison v. State, 144 Ala. 20, 40 So. 568.

9

'State v. Renfrow, III Mo. 589, 598, 20 S. W. 299; People v. Cronin, 34 Cal. 191, 203; People v. Hitchcock, 104 Cal. 482, 38 Pac. 198; People v. Crowley, 102 N. Y. 234, 238, 6 N. E. 384; Anderson v. State, 104 Ind. 467, 472, 4 N. E. 63, 5 N. E. 711; Wilkins v. State, 98 Ala. I, 13 So. 312; Commonwealth v. Harlow, 110 Mass. 411; State v. Moelchen, 53 Iowa 310, 316, 317, 5 N. W. 186; State v. Slingerland, 19 Nev. 135, 141, 7 Pac. 280; State v. Melvern,

32 Wash. 7, 72 Pac. 489; Burkett v. State, 154 Ala. 19, 45 So. 682; Wright v. State, 148 Ala. 596, 42 So. 745; Sykes v. State, 151 Ala. 80, 44 So. 398; Thomas V. State (Ala.), 47 So. 257; Davis v. State, 152 Ala. 25, 44 So. 561; Greer v. State (Ala.), 47 So. 300.

10 State v. Maguire, 113 Mo. 670, 21 S. W. 212; State v. Bryant, 134 Mo. 246, 35 S. W. 597; State v. Ihrig, 106 Mo. 267, 270, 17 S. W. 300; Panton v. People, 114 Ill. 505, 507, 2 N. E. 411; Chambers v. People, 105 Ill. 409, 413, 414; Bird v. State, 107 Ind. 154, 156, 8 N. E. 14; Hartford v. State, 96 Ind. 461, 469, 49 Am. 185; Smith v. State, 108 Ala. 1, 19 So. 306, 54 Am. St. 140; People v. Resh, 107 Mich. 251, 65 N. W. 99; State v. Metcalf, 17 Mont. 417, 43 Pac. 182; State v. Holloway, 117 N. Car. 730, 23 S. E. 168; Newport v. State, 140 Ind. 299, 39 N. E. 926; Wrye v. State, 95 Ga. 466, 22 S. E. 273; State v. Tarter, 26 Ore. 38, 37 Pac. 53; Hamilton v. State, 62 Ark. 543, 36 S. W. 1054. The cases are not harmonious upon the proper language of the instruction. Its form is usually prescribed by statute.

11 United States v. Kenney, 90 Fed. 257.

the testimony of the accused under the same rules and principles as with any witness.12

13

So an instruction that the credibility and weight of defendant's testimony were for the jury, and that they might consider his manner of testifying, the reasonableness of his account of the transaction, and his interest in the case, and should consider his testimony and determine whether it was true or not, was not open to the objection of telling the jury that they were not bound to treat defendant's testimony the same as that of other witnesses.1 The jury should not permit the fact that the accused, while tes tifying, is burdened with an imputation of crime to influence them to such an extent that they will disregard his evidence, if they believe it is true. They should remember that, though accused, he is presumed to be innocent, until they are convinced he is guilty, and their verdict must be based upon the whole evidence, including his own. Hence, the jury may not, at pleasure and without regard to the elements of credibility which the evidence of the accused may possess, reject it because of his interest, or because they are not satisfied that it has been corroborated.1 They must always fairly consider his evidence together with all the evidence in the case.

14

14a

§ 58a. Evidence obtained by searches legal and illegal.-By the constitution of the United States and the constitutions of the sev

12 Ferguson v. State, 72 Neb. 350, Sullivan v. People, 114 Ill. 24, 27, 28 100 N. W. 800. N. E. 381; State v. Sanders, 106 Mo. 188, 17 S. W. 223. See Underhill on Evid., § 234.

13 Waller v. People, 209 Ill. 284, 70 N. E. 681. In a prosecution for embezzlement, a charge specifically pointing out accused, and calling attention to his testimony, and stating that, if he had willfully and corruptly testified falsely to any fact material to the issue, the jury had the right to entirely disregard his testimony, was not error. McCracken v. People, 209 Ill. 215, 70 N. E. 749.

14 Bird v. State, 107 Ind. 154, 156, 8 N. E. 14; Randall v. State, 132 Ind. 539, 32 N. E. 305; State v. Taylor, 134 Mo. 109, 35 S. W. 92; State v. Wells, 111 Mo. 533, 20 S. W. 232;

14a Owens v. State, 63 Miss. 450, 452; State v. Melvern, 32 Wash. 7, 72 Pac. 489. It is error to instruct the jury that they must regard the evidence of the accused with great caution because of his interest, State v. Holloway, 117 N. Car. 730, 23 S. E. 168; State v. White, 10 Wash. 611, 39 Pac. 160, 41 Pac. 442; or that the jurors should bear in mind the tendency on the part of the guilty accused person to fabricate a story which may bring about their acquittal. State v. Hoy, 83 Minn. 286, 86 N. W. 98.

eral states, it has been provided that no one shall be compelled on a criminal trial, to give evidence against himself and that the rights of the people against unreasonable searches, shall not be violated. The mere fact that papers are produced by the execution of a search-warrant is no objection to their admission in evidence. In the supreme court of the United States, it has been held that the accused was not compelled to incriminate himself, where his private papers in the possession of the prosecution were introduced against him. This is the rule particularly where the witness who testifies says nothing concerning the papers produced.15 And it has been often held in the state courts that the above constitutional provisions are not violated merely by the reception in evidence of papers or articles of personal property taken from the person or premises of the accused while he is under arrest, and it does not appear in these cases, that it is material whether the search is made by virtue of a legal search warrant or not.16

On the other hand, it has been held that the articles obtained by search of the house of the accused under an illegal search warrant is not admissible under constitutional provisions." A distinction is made between articles or documents procured by a search of the person of the accused after he has been arrested and the same sort of evidence procured by an illegal search of the premises occupied by the accused.

In Georgia it has been repeatedly held that evidence either direct or indirect which has been secured by the prosecution by an unlawful search, either of the house or of the person of the accused, as, for example, where the accused has been illegally arrested and searched by police officers should be excluded.17a

15 Adams v. New York, 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. 372, aff'g People v. Adams, 176 N. Y. 351, 68 N. E. 636, 98 Am. St. 675n, 63 L. R. A. 406.

16 Lawrence v. State, 103 Md. 17, 63 Atl. 96; Commonwealth v. Carbin, 143 Mass. 124, 8 N. E. 896; State v. Sharpless, 212 Mo. 176, 11 S. W. 69; State v. Strait, 94 Minn. 384, 102 N. W. 913; State v. Jeffries, 210 Mo. 302, 109 S. W. 614; People v. Coombs,

158 N. Y. 532, 53 N. E. 527, aff'g 36 App. Div. (N. Y.) 284, 55 N. Y. S. 276; Drake v. State, 75 Ga. 413, 415; State v. Ah Chuey, 14 Nev. 79, 83, 33 Am. 530n; Roszczyniala v. State, 125 Wis. 414, 104 N. W. 113; State v. Baker, 33 W. Va. 319, 10 S. E. 639.

"State v. Sheridan, 121 Iowa 164, 96 N. W. 730.

17a Croy v. State, 4 Ga. App. 456, 61 S. E. 848; Hughes v. State, 2 Ga. App. 29, 58 S. E. 390; Gainer v. State,

Elsewhere it has been held to be the general rule that the courts will not inquire at all into the mode by which the evidence is obtained if it is relevant and otherwise admissible and that the illegal seizure of papers does not in itself constitute any obstacle to their admissibility if they are relevant.18

So a pistol found on the person of the accused,18a or documents taken from him at the time of his arrest,19 or articles of personal property which are relevant taken from the premises of the accused 20 have been received in evidence.

The production in court of vouchers taken from the possession of the accused by a witness who produces them under subpoena, does not violate the constitutional right of the accused to be exempt from giving evidence which would incriminate him.20a So documents consisting of the letters of a private character which were taken from among the personal papers of the accused by his employes or other persons without his knowledge or consent and by them voluntarily turned over to the district attorney are receivable in evidence if relevant.21 And in New York, it has been expressly held that the police may search the person of one

2 Ga. App. 126, 58 S. E. 295; Hammock v. State, 1 Ga. App. 126, 58 S. E. 66; Sherman v. State, 2 Ga. App. 148, 58 S. E. 393; Davis v. State, 4 Ga. App. 318, 61 S. E. 404; Sherman v. State, 2 Ga. App. 686, 58 S. E. II22. (Concealed weapons.)

18 State v. Flynn, 36 N. H. 64; Commonwealth v. Tibbetts, 157 Mass. 519, 32 N. E. 910; State v. Griswold, 67 Conn. 290, 34 Atl. 1046, 33 L. R. A. 227; Siebert v. People, 143 Ill. 571, 582, 32 N. E. 431; Commonwealth v. Smith, 166 Mass. 370, 44 N. E. 503. Cf. Feople v. Gardner, 144 N. Y. 119, 128, 38 N. E. 1003, 43 Am. St. 741, 28 L. R. A. 699n; Younger v. State, 80 Neb. 201, 114 N. W. 170; People v. Strollo, 191 N. Y. 42, 83 N. E. 573; Imboden v. People, 40 Colo. 142, 90 Pac. 608; Hardesty v. United States, 164 Fed. 420; People v. Adams, 85 App. Div. (N. Y.) 390, 83 N. Y. S. 481; Rogers v. State, 4 Ga. App.

691, 62 S. E. 96; Tooke v. State, 4 Ga. App. 495, 61 S. E. 917; Taylor v. State (Ga. App. 1908), 62 S. E. 1048; Jones v. State (Ga. App.), 62 S. E. 482; Eaker v. State, 4 Ga. App. 649, 62 S. E. 99.

18a Springer v. State, 121 Ga. 155, 48 S. E. 907.

19 State v. Royce, 38 Wash. III, 80 Pac. 268; Waggoner v. State (Tex. Cr. App.), 98 S. W. 255.

20 State v. Schmidt, 71 Kan. 862, 80 Pac. 948 (bottles of liquor found in defendant's possession).

20a People v. Coombs, 158 N. Y. 532, 53 N. E. 527.

who is lawfully under arrest. They may also search the room in which he was arrested and any other place to which they can secure lawful access. Writings or articles which are procured by this search are not incompetent,22 because of the manner in which they were obtained.

§ 59. Mode of examining the accused.-As the accused is a competent witness, he has a constitutional right to demand that he shall, when testifying, be questioned by his own counsel in the same manner as other witnesses.23 The court cannot, therefore, silence his counsel and compel the accused to give a general account of the whole transaction, nor is his counsel precluded from objecting to irrelevant questions put to him on his crossexamination.2* He must be permitted on his direct examination to explain his conduct and declarations as he has testified to them, or as they have been described by other witnesses. He must be permitted fully to unfold and explain his actions, and to state the motives which he claims prompted them. It is, within certain limits, relevant for him to state what intention was present in his mind when he participated in a transaction which is in issue. 25 And the jury are the sole judges to determine whether the defendant's statement is false. They should not ignore his state

22 Smith v. Jerome, 47 Misc. (N. Y.) 22, 93 N. Y. S. 202.

23 Clark v. State, 50 Ind. 514, 515; Fletcher v. State, 49 Ind. 124, 132, 19 Am. 673.

24 People v. Brown, 72 N. Y. 571, 573, 28 Am. 183; Hanoff v. State, 37 Ohio St. 178, 180, 41 Am. 496.

25 In People v. Quick, 51 Mich. 547, 18 N. W. 375, it was held error to exclude the question "Why did you do that?" State v. Montgomery, 65 Iowa 483, 22 N. W. 639. "The object of the recent changes was not merely to enable parties to disclose facts wholly within their knowledge, but to do what had heretofore been impossible, to explain the motives with which they were performed, and to explain, if need be, what they meant, or intended to be understood as mean

ing, by what they may have said in regard to any material fact. If parties are to be kept in harness and not allowed to explain their actions and words when they admit of explanation and when it is needed, but half the evil which was felt under the old rule has been removed." People v. Farrell, 31 Cal. 576, 584. Cf. Ross v. State, 116 Ind. 495, 497, 19 N. E. 451. "When an act forbidden by law is intentionally done, the intent to do the act is the criminal intent, which imparts to it the character of an offense, and no one who violates the law, which he is conclusively presumed to know, can be heard to say that he had no criminal intent in doing the forbidden act. A party cannot excuse himself for an act intentionally done, and which is a violation