3 Kan. 488 | Kan. | 1866
By the Court,
The decision of this court in the case of Craft v. The State, just announced, practically determines this case, and renders a new trial necessary. Such being the fact, we might well be content to simply refer to the reasoning in the former case, as fully sustaining our action here.
But in addition to the questions common to both cases, another point arises in this one, which we deem of too much importance to remain unnoticed, and especially since it may be likely to be again raised on a new trial herein.
On the trial of this cause in the court below, .the defendant asked the court to charge the jury as follows:
*496 “ If the jury believe, from all the evidence, that the witness Molly Brown has testified falsely in respect to any materia] fact, it is their duty to disregard the whole of her testimony.” The court refused so to instruct, and to this ruling the defendant by his counsel excepted.
In our opinion the language of the instruction embodies a sound principle of law, and as an examination of the record shows that it was fully warranted by the state of the evidence, and therefore applicable to the case, it ought to have been given to the jury. (25 Mo., 554.) But to what extent such an error on the part of the court may have operated to the serious prejudice of the defendant, and which might be made to appear from a careful examination of all the testimony, it is perhaps unnecessary to inquire, inasmuch as the case must go back, as before stated, under the decision above refeiued to. Besides it is quite immaterial. It may however be remarked, that we think the defendant had reason to say that he was prejudiced by the action of the court in this regard, because he was denied the benefit of a just and proper rule of evidence, which he had a right to have declared in the form of an instruction to the jury, and to which he was entitled for what it was practically worth. If therefore no other reason existed for so doing, this case must be reversed on this account, and this too, although the jury might have believed that the witness Molly Brown had not been successfully contradicted. (25 Mo., 554.) But it is strongly insisted that the rule laid down in this instruction goes too far, and invades the province of the jury, and that the courts should only advise them that they “ may disregard, or that they are authorized to disregard ” all the testimony of a witness who has been successfully contradicted as to a material fact. This view has hitherto been supported and adhered to by many respectable authorities which the counsel for the State have industriously collected and urged upon our notice. But
Eaith in a witness’ testimony cannot be partial or fractional. Where any material tact rests on his testimony, the degree of credit due to him must be ascertained, and according to the result, his testimony is to be credited or rejected.
So also in the opinion of the Supreme Court of Ohio, in Stoffer v. The State, (15 C. St., 556,) the court say: “Now, if, as this author says, the presumption that such a witness will speak the truth, is wholly gone, and for this reason his testimony is to be rejected, what in the nature of things can remain to submit to a jury from which they are to make up that complement of proof which establishes facts, as a foundation for the judgment of courts ? Is not this yielding the witness partial or fractional credit? And that in the face of the fact, that before the eyes of this very tribunal which accords him credit, and in the very proceedings, he has committed willful and corrupt perjury. To say that facts may be found upon his testimony notwithstanding, or that they may be found in fact upon it, is a difference in degree only, and not in principle. The other evidence although in a greater or less degree corroborative of his, is yet supposed to be insufficient to establish the fact in issue, and
Upon the whole, we are inclined to agree with Hon. Justice Story in his opinion in the case of The Santissima Trinidad, (7 Wheat., 283,) that where a party speaks to a fact, in respect to which he cannot be presumed liable to a mistake, courts are bound upon principles of law, morality and justice, to apply ilfalsus in.unofalsus in omnibus” and, too, as with him, “ what ground of judicial belief can there be left where the party has shown such gross insensibility to the difference between right and wrong, between truth and falsehood ?”
These views so carefully and yet so decisively expressed, meet with our hearty approval, as containing what is and ought to be the law applicable to all cases like the one under consideration.
Some other objections are made to the proceedings in this case, and urged by counsel, but as they concern such matters as will not be likely to occur again, we have thought it proper to pass them by. The judgment will be reversed and the court below ordered to sustain the motion for a new trial.