Henrich v. McCauley

154 Ga. 855 | Ga. | 1923

Hines, J:

(After stating the foregoing facts.)

The propounder complains of the charge on the subject of impeachment of witnesses, which is contained in the first ground of the amendment to her motion for new trial, and is set out in full in the statement of facts. On the subject of the impeachment of witnesses, the court instructed the jury as follows: “If you find that any witness has been impeached by proof of contradictory statements, you should disregard that statement which is in conflict with the statement previously made, unless corroborated by other credible testimony, and the credit to be given the balance of the evidence would be for your determination.” The ground of exception to this instruction is that it is an erroneous statement of the law and prejudicial to the movant. Similar instructions have been condemned by this court, and new trials have been granted on account thereof. Waycaster v. State, 136 Ga. 102 (70 S. E. 883); Purvis V. Atlanta Northern Ry. Co., 136 Ga. 852 (72 S. E. 343); Ga. Ry. & El. Co. v. Cocke, 137 Ga. 720 (74 S. E. 244). In the Purvis case this court, in dealing with a similar charge and speaking through Justice Beck, said: “ The instruction contained in this portion of the charge was confusing; and if it be construed, as it very probably was construed, by the jury, as requiring them, to find that as between sworn testimony and previous contradictory statements the sworn testimony was false and therefore to be rejected, the rule submitted for the guidance of the jury was not sound.” In Ga. Ry. & El. Co. v. Cocke, supra, this court again quoted approvingly the above language, and the principle ruled in the case in which the above language was used, and granted a new trial because of such erroneous instruction.

But it is insisted by counsel for the caveatrix, that the principle ruled in the cited cases is not applicable to the instant case, because in these cases the conflict was between unsworn statements not made in court, and sworn statements made in court; but in the case at bar the conflict is between sworn statements contained in two sets of depositions of the witness, taken out before the first trial of this case, and statements made by the witness when sworn and examined in person in behalf of the propounder on said trial. In other words, the contention is that the principle of the cited cases does not apply when it is sought to impeach the witness by contradictory sworn statements. The learned counsel for the caveatrix does not cite any authority to sustain this contention. Diligent search on our part fails to disclose such authority. This contention does not seem to us to rest upon sound logic and reason. When a previous sworn statement, contradicted by a later sworn statement, is introduced to impeach a witness, does the law demand that the jury shall reject and disregard the last statement? We think not. In the one case as in the other, the credibility of the witness is to be determined by the jury; and the court erred in instructing the jury that, if they found any witness had been impeached by proof of contradictory statements, they should disregard that statement which is in conflict with the statement previously made, unless corroborated by other credible testimony.

While we are loath to set aside a second verdict in favor of the caveatrix, this erroneous instruction is of such pith and moment as to require the grant of another trial of this cause. The witness whom it was sought to impeach was the only witness to the document propounded as a will whose testimony was before the jury; one of the witnesses thereto being dead, and the third being inaccessible. So the vital importance of this witness to the propounder becomes apparent. Such erroneous instruction by the .court to the jury for their guidance in handling the testimony of this witness was harmful to the propounder.

The court charged the jury “that it [referring to the will] having been signed by her husband in the presence of three witnesses, and that will — so-called will — was entitled to probate in your county.” The error alleged is that the use of the language, “so-called will,” by the court tended to convey to the mind of the jury' the impression that the instrument offered for probate was not genuine. • The inference which the jury might naturally draw from this language was that the court believed that the instrument propounded as the will of the deceased was not genuine, but only a so-called will, or doubted its genuineness; and the use of such language was therefore improper. Davis v. State, 57 Ga. 66. So we are of the opinion, that, as the main ground upon which the caveatrix relied to defeat the probate of the propounded instrument was that it was a forgery, this language tended to prejudice the case of the propounder in the eyes of the jury.

In the third and fourth special grounds of the motion for new trial error is assigned upon the admission by the court of certain testimony of two witnesses, over timely objection that such testimony was irrelevant. The nature of this evidence is set out in the statement of facts. We fail to see the relevancy of this evidence; and it was error to admit the same.

Judgment reversed.

All the Justices concur.

Russell, C. J. I fully agree with the rulings in the first and second headnotes, and consequently concur in the result reached. However, it is not plain to me that the court erred in admitting the evidence of which complaint is made in the third and fourth grounds of the amended motion for new trial.