Bonnie v. Earll, 12 Mont. 239

Bonnie v. Earll

12 Mont. 239 | Mont. | 1892

Be Witt, J.

An instruction based upon the maxim, falsus in uno, falsus in omnibus, may be given when there is something to indicate that a witness wilfully testified falsely as to a material matter. The Supreme Court of Georgia has *241formulated the matter for such instruction in the following remarks, in the case of Pierce v. State, 53 Ga. 369: “We think the true rule to be deduced from these decisions, and one that is proper to be given in charge to the jury when the question arises, is if a witness knowingly and wilfully swears falsely in a material matter, his testimony should be rejected entirely, unless corroborated by the facts and circumstances of the case or other credible evidence.” (See, also, Skipper v. State, 59 Ga. 64.) This rule seems to be approved by the text-writers. (See Sackett’s Instructions to Juries, p. 33, and 2 Thompson on Trials, § 2423.) The author last cited, in the same section, says: “It is accordingly error, in formulating a cautionary instruction under this head, to omit the words ‘knowingly/ ‘wilfully/ ‘intentionally/ or some equivalent expression.” These views are sustained by the authorities cited by Mr. Thompson. (See, also, People v. Strong, 30 Cal. 151; People v. Sprague, 53 Cal. 491; and People v. Righetti, 66 Cal. 184; Wilkins v. Earle, 44 N. Y. 172; 4 Am. Rep. 655; Chicago v. Smith, 48 Ill. 107; Hoge v. People, 117 Ill. 35.)

We are of opinion that the Georgia case states the rule correctly, except that we would modify it iu this respect: That case says that the testimony of such a witness “should be rejected entirely,” etc. The authorities, as we understand them, hold, as stated in Hoge v. People, Supra, that, under the circumstances, “the jury may, but they are not bound to, disregard the evidence.” (Citing United States Express Co. v. Hutchins, 58 Ill. 44; Pope v. Dodson, 58 Ill. 360; Otmer v. People, 76 Ill; 149; Gulliher v. People, 82 Ill. 146; Swan v. People, 98 Ill. 612. See, also, People v. Sprague, and Wilkins v. Earle, supra.)

Now, as to the instruction in the case at bar of which appellants complain. It is observed that this instruction wholly omits the words “wilfully” or “knowingly” or “intentionally.” It is true that the instruction contains this remark: “If you believe that the testimony of any witness in this case has been given under the influence of ill-will towards the defendants,” etc. But there is no evidence that this witness gave his testimony actuated by ill-will. The witness acknowledged that the relations between him and one of the defendants were not friendly, and, if such were a fact, he was bound to admit *242it, if he told the truth. But, because relations between a witness and a party are unfriendly, this fact is not evidence that the witness is practically committing perjury, that is, that he is swearing wilfully false in a material matter. And these are the elements which must go into the instruction which we are considering. A truthful witness might happen to be on ill terms with a party in a lawsuit, but this circumstance alone cannot be the basis of an instruction to the jury that if they find that such a witness has testified wilfully or knowingly falsely on a material matter they may disregard his testimony. No court, as far as we are aware, has ever upheld any such view, and the instruction is wholly against the generally accepted doctrine of the application of the maxim, falsas in uno, falsus in omnibus.

It is therefore ordered that the judgment be reversed, and the case remanded for a new trial.

Reversed.

Blake, C. J., and Harwood, J., concur.