State v. Barino

Delaware Court of Oyer and Terminer

State v. Barino

107 A. 833, 30 Del. 379, 7 Boyce 379, 1919 Del. LEXIS 39

CourtDelaware Court of Oyer and Terminer

DecidedSeptember 30, 1919

DocketIndictment No. 137

StatusPublished

This text of 107 A. 833 (State v. Barino) is published on Counsel Stack Legal Research, covering Delaware Court of Oyer and Terminer primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Barino, 107 A. 833, 30 Del. 379, 7 Boyce 379, 1919 Del. LEXIS 39 (Del. Super. Ct. 1919).

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Opinion

Pennewill, C. J.,

after charging the jury upon the law of homicide as in State v. Russo, 1 Boyce, 538, 77 Atl. 743, and after calling theii attention to chapter 266, vol. 29, Laws of Delaware, as in State v. Jaroslowski, ante, 103 Atl. 657, further instructed the jury:

[1, 3] While the jury are the judges of the weight and value of the testimony, we may say that ordinarily positive testimony is of more value than mere negative testimony. For example, the testimony of a witness who swears that he saw the act committed is to be given more weight than the testimony of another witness who swears that he was present and did not see the commission of the act.

But circumstances may be shown which make such negative testimony strong affirmative evidence, and it is for the jury to say whether in the particular case such circumstances have been shown.

[4] Where there is conflict 'in the testimony, it is the duty of the jury to reconcile it, if they can, and, if they cannot do so, they should accept such testimony as they consider under the circumstances most worthy of credit, having regard to the intelligence or ignorance of the witnesses, their interest or bias, if any [381]*381is shown, their bearing or manner in giving their testimony, their opportunity of observing and knowing the things respecting which they testified, and any other facts or circumstances that indicate the reliability or unreliability of their testimony.

Verdict, guilty of murder of the second degree.

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Pennewill, C. J.,

after charging the jury upon the law of homicide as in State v. Russo, 1 Boyce, 538, 77 Atl. 743, and after calling theii attention to chapter 266, vol. 29, Laws of Delaware, as in State v. Jaroslowski, ante, 103 Atl. 657, further instructed the jury:

[1, 3] While the jury are the judges of the weight and value of the testimony, we may say that ordinarily positive testimony is of more value than mere negative testimony. For example, the testimony of a witness who swears that he saw the act committed is to be given more weight than the testimony of another witness who swears that he was present and did not see the commission of the act.

But circumstances may be shown which make such negative testimony strong affirmative evidence, and it is for the jury to say whether in the particular case such circumstances have been shown.

[4] Where there is conflict 'in the testimony, it is the duty of the jury to reconcile it, if they can, and, if they cannot do so, they should accept such testimony as they consider under the circumstances most worthy of credit, having regard to the intelligence or ignorance of the witnesses, their interest or bias, if any [381]*381is shown, their bearing or manner in giving their testimony, their opportunity of observing and knowing the things respecting which they testified, and any other facts or circumstances that indicate the reliability or unreliability of their testimony.

Verdict, guilty of murder of the second degree.

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Bluebook (online)

107 A. 833, 30 Del. 379, 7 Boyce 379, 1919 Del. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barino-deloyerterm-1919.

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