Curry

The defendant was convicted of the crime of robbery, and appeals from the judgment and order denying his motion for a new trial. It is insisted that the evidence is insufficient to support the verdict. The sufficiency of the evidence has been passed upon by the jury, and again by the trial court, when considering the motion for a new trial, and under such circumstances we are averse to nullifying their action. The evidence of the prosecuting witness, especially, as strengthened by that of-the police officer, is ample to sustain the verdict. The venue also is sufficiently shown by the record.

The court instructed the jury that “ the defendant in a criminal case, testifying in his own behalf, occupies a relation to the case different from that occupied by any *549 other witness, and in considering the weight and effect to be given to the testimony of this defendant, in addition to noticing his manner,” etc. (Then follows the balance of the stereotyped instruction upon this subject.) Appellant specially attacks that part of the instruction wherein the jury is told that the defendant in testifying occupied a different relation to the case from that of other witnesses. Inasmuch as…