Appellant was convicted of the crime of grand larceny. He specifies as error the refusal of the trial court to give the following requested instruction:
“A witness may be impeached by the party against whom he was called, in various ways:
“This may be done by the introduction of contradictory evidence of other witnesses; or by evidence showing that the general reputation of the witness for truth and veracity is bad; or by the fact of the witness having been convicted of а felony; or by evidence that the witness has made at other times statements inconsistent with the testimony given.”
It was not error tо refuse to give this instruction. The statements of principles of law therein contained are substantially correct; but the proposed instruction contains no information as to the rules of law which should govern the jury in its consideration of the testimony of a witness who has been impeached. It only contains statements of law which the court itself should observе when ruling upon the admissibility of evidence.
Appellant also specifies as error the refusal of the court to givе the following requested instructions:
(No. 4) “Before a conviction can be had in' a criminal case the evidence must show to a moral certainty and beyond all reasonable doubt the guilt of the defendant.
“A juror in a criminal case is not privileged to convict simply because he believes that there is a preponderance of
“A verdict of [not] guilty means only that the guilt of the person on trial hаs not been proved under the rules governing the conduct of criminal trials.”
(No. 5) “A juror who is not satisfied of the guilt of a defendant on trial beyond all reasonable doubt, should not assent to a verdict of guilty simply to save a mistrial or because a majority of the jurors are opposed to him in belief. Such juror should stand by his opinion until convinced by the arguments of his fellow-jurors or by a change in his own ideas and opinions that the defendant is guilty beyond a reasonable doubt.”
The only portions of these requested instructions not sufficiently covered by those given by the court are the portions which advise eаch individual juror that he should not join in a verdict of guilty unless he is satisfied beyond a reasonable doubt of the guilt of the accused.
While the court, in its discretion, in some cases might properly give such instructions, its refusal so to do is not error. (People v. Fisher,
Apрellant requested the court to give the following instruction: “Whenever it has been shown by the evidence to the satisfaсtion of the jury that a witness has wilfully sworn falsely in any material matter, the jury is privileged to reject the testimony of such witness exсept when corroborated by other and reliable evidence.”
The court refused to give the instruction for the reason, as stated by his indorsement thereon, that it was embraced in another instruction given as follows: “You may dis-
regard entirely the evidence of any witness whom you believe has sworn falsely in the ease, unless the testimony of such witness is corrobоrated by other testimony, facts or circumstances in evidence and established to your satisfaction. ’ ’
The instruction as given was insufficient in two particulars: First, it failed to require that the false testimony must be wilful or intentional; second, it contained no statement that the false testimony must relate to a material fact.
The authorities are practically unаnimous in holding that both of these requirements are essential, except in jurisdictions where the rule has been modified by statute. (Gottlieb v. Hartman,
In jurisdictions where the rule is prescribed by statute, it is held that an instructiоn in . the language of the statute is sufficient. (Simpson v. Miller, supra; State v. Connors,
An instruction based on the maxim, Ealsus in uno, falsus in omnibus, should be given only when warranted by the evidence adduced at the trial. (Ingalls v. State,
It usually rests in the discretion of the trial court as to whether the instruction should or should not be given, since the trial court is in a much better position than the appellate court to determine whether or not the evidence requirеs such an instruction or whether or not it is appropriate that it be given. (State v. Hickman,
The only cases which have come to our attention directly holding that in no case can error be predicated upon the refusal of the court to givе such an instruction are State v. Banks,
We are of the opinion, however, that the refusal of such an instruction is reversible error whеn from the record it is clearly apparent that one or more witnesses have deliberately and wilfully given contrаdictory testimony as to a material fact, or there is a palpable and irreconcilable conflict bеtween the evidence of different witnesses as to material matters. (Plummer v. State,
In the case at bar numerous witnesses testified on behalf of the state and of appellant, and there are direct, positive and irreconcilable conflicts in the evidence as to the essential and material facts involved in the action.
The refusal to give the requested instruction was error. (State v. Wain,
The judgment is reversed and a new trial ordered.