23 Mo. 77 | Mo. | 1856
delivered the opinion.of the court.
The only question considered material in this case is the one arising from the refusal of the court below to give the following instruction asked for by the defendants: “ If the jury believe from the evidence that the witness (Cross) wilfully testified falsely with regard to any material fact, they are authorized to discard the whole of his testimony.” From the record, we see-that there was but one witness for the plaintiff, the witness Cross ; and that his testimony was contradicted by other witnesses, on the part of the defendants. So the instruction was not merely an abstract one, but was authorized by the evidence. Was it lawful, then, to give it ? This question was before this court in the case of the State v. Mix, (15 Mo. 153,) and a similar instruction was decided to be proper, and that it was error to refuse to give it. The decision in this case of the State v. Mix we consider as declaratory of principles well established, and therefore the court below erred in refusing to give the jury the instruction.
It has been said, that, if witnesses concur in proof of a material fact, whatever may be the other contradictions in their testimony, they ought to be believed in respect to that fact. That position may be true under circumstances ; but it is a doctrine which can be received only under many qualifications, and with great caution. If the circumstances respecting which the tes
In this case, there being a contradiction of the only witness for the plaintiff, and that, too, in a matter material to the merits of the controversy between the parties, the court ought to have given the instruction asked for by the defendants. The judgment below is reversed, and the cause remanded;