The opinion
DISSENTING OPINION
Achor, J.
In my opinion the refusal of the court tó give appellant Sherwood’s tendered Instruction No. 17, and appellant Sayer’s tendered Instruction 20, constituted reversible error. These instructions were the same and read as follows:
“I instruct you that if you find from the evidence in this case that the Prosecuting Attorney has agreed to recommend leniency for Arthur J. Mogilner, you may consider this evidence, together with all other evidence, in determining the credi-. bility of the said Arthur J. Mogilner and the weight to be given his testimony as a witness herein.”
Mogilner, Sherwood and Sayer were charged with the same crime in a single indictment. A motion to separate was denied. After the jury had been sworn, and in the presence of the jury, Mogilner pleaded guilty *224 to the offense charged, and, immediately thereafter, without first being sentenced on his own plea of guilty, testified for the state that the appellants Sherwood and Sayer had participated with him in the crime charged as accomplices. Under these circumstances it was not necessary that the instruction, by express language, circumscribe its application to the facts in the case, since they were known to the jury and were a matter of record.
The fact that the testimony of an accomplice is given pursuant to the promise or agreement of the state to recommend leniency is a circumstance that is the proper subject of testimony to go to the jury in considering the credibility of the testimony of the witness. 1 Furthermore, the credibility of the testimony of an accomplice is a proper subject for instruction to the jury. Ruvel v. United States (1926), 12 F. 2d 265 (C. C. A. 7th Circ.). Therefore, in my opinion, if an accomplice testifies under the background of an agreement by the state to recommend leniency with respect to' the sentence yet to be imposed upon him, this is a material fact or circumstance of such significance and so unique to the credibility of the particular witness that it is the proper subject of a special instruction.
Furthermore, in my opinion, neither the general instruction regarding the credibility of the witnesses, nor the specific instruction that “It is the duty of the court and jury to carefully scrutinize the testimony of an accomplice,” were sufficient under the peculiar facts of this case to avoid the necessity of the specific instruction here requested.
*225 The general rule upon this subject has been stated as follows:
“The jury are the sole judges of the credibility of witnesses and the weight that should be given to their testimony and it is proper SO' to charge the jury. McIntosh v. State (1898), 151 Ind. 251 , 51 N. E. 354 . But this does not forbid instructions as to the tests to be applied to the testimony by the jury. The court may charge that the jury may give consideration to the appearance and demeanor of the witnesses, their manner of testifying, their apparent candor and fairness, their bias or prejudice, their apparent intelligence, their interest in the result, and all other surrounding circumstances. . . .” (Our italics.) Reid’s Branson Instructions to Juries, 1960 Repl., Vol. 1, §69, pp. 234-235.
Therefore, in my opinion, it was not only proper but mandatory that, under the “surrounding circumstances” here presented, the instruction here requested should have been given to the jury.
Norn — Reported in 170 N. E. 2d 656 .
. “Since the fact that testimony is given pursuant to a promise of immunity or leniency may have a bearing upon the weight to be given it, there is no question as to the right of the defendant to have the fact that such promise has been made brought to the attention of the jury. . . .” 120 A. L. R. 753.