Appellants were convicted of a robbery of a bank at Huron. This appeal is from the judgment and the order denying new trial. The errors assigned are: (1) The disallowance of the challenge to the panel; (2) twenty-six instances of alleged misconduct by the state’s attorney; (3) the refusal to give appellants’ version of an instruction on the maxim, falsus in uno, falsus in omnibus.
As to the assignments relating to misconduct of the state’s attorney, a large number of the instances assigned as error consist of across-the-table questions, suggestions, and argument. Instead of exercising the inherent power to compel counsel to refrain from such improper conduct, the trial judg'e used only mild reproof in which, too often, Objector and offender shared almost equally in the censure. In no small number of these across-the-table encounters appellants’ counsel freely participated. The result of all this is a record which can be no source of pride either to counsel or to the trial judge. Respondent has deemed it necessary to supplement appellants’ 69-page abstract with 120' pages of additional statement. A careful reading of both the abstract and the settled record, thereby made necessary, leaves one in grave doubt as to whether the result was at all different than it would have been had the case been tried without any misconduct whatever. State v. Townley, 149 Minn. 5, 182 N. W. 773, 780, 17 A. L. R. 253. Furthermore, when distributed through a six-day hard-fought trial, the instances of misconduct were less harmful than they appear when brought togethed in the assignments; and those assigned are materially reduced in number when those to which objections were sustained and those to which no objections were made are stricken out. The guilt of appellants was amply proven. A motion for a new trial was made, on the ground, among others, of the misconduct of counsel. In considering that motion for a new trial, the facts of misconduct, the provocation thereto, the effect thereof, the objections and rulings thereon, and actual atmosphere of the
Among the errors so assigned were some relating to the instruction of the jury. Appellant requested the court to instruct as follows: “In passing upon the credibility of the various witnesses in this case, the court instructs that if you should find that any witness has wilfully testified falsely as to any material fact in the case, then it is your privilege, and you may, if you so desire, disregard his entire testimony except in so far as it may be corroborated by the testimony of other credible witnesses.”
Instead of instructing as above requested, the court instructed as follows: “You are further instructed that if you believe that any witness has wilfully testified falsely to any material matter in this case, then you are at liberty to disregard the testimony of such witness in so far as you believe it to be false.”
Despite the fact that in Citizens’ State Bank v. Bailey, 46 S. D. 547, 195 N. W. 37, 38, this court said that an instruction such as the one given above “would have been accurate,” it is not a proper statement of the law under the maxim, falsus in uno, falsus in omnibus, nor is the instruction requested in good form. Both
But the exception as taken to the refusal to give the requested instruction was as follows: “That it is a correct statement of the law and the instruction proposed by the court only permits the jury to disregard such evidence as they believe to be false. Whereas, the correct rule is that they may disregard all the testimony if they so desire, regardless of whether they may believe it to be true or false, it being the privilege of the juror to disregard such testimony even though he believes it to be true.” There was no exception taken to the instruction given except as contained in the foregoing exception to the instruction requested and refused.
Appellants were entitled to have the jury correctly instructed under the maxim, falsus in uno, falsus in omnibus. The trial court was willing to instruct under the maxim. In an attempt to do so, it used language which this court in Citizens’ State Bank v. Bailey, supra, had said was “accurate.” In taking their exceptions, appellants stated that the instruction given was wrong because it is the privilege of a juror to disregard testimony which he believes to be true when given by a witness who has willfully testified falsely to some other material matter in the case. The instruction given was incorrect, and the reason stated in appellants’ exception thereto was also incorrect. The learned trial judge would have readily seen the error and avoided it had appellants, in compliance with rule 26, specified “clearly wherein the instruction was insufficient or did not state the law.” When a judge has instructed jurors that, if they believe that any witness has willfully or knowingly testified falsely to any material matter in the trial of the case, they may disregard the entire testimony of such witness, he has stated the rule under the old maxim. The reason why they may disregard the entire testimony of such witness is because it is the testimony of one who manifested his willingness to perjure himself. The
But the instruction given was not the only instruction given to aid the jury in weighing the evidence. They were also instructed as follows: “You are the sole judges of the credibility of the witnesses, of the weight of the evidence, and of the facts. It is your right, in determining upon the weight to be given to the testimony of the several witnesses who have testified in the case, to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor or frankness or lack theerof, which witnesses are more worthy of credit and to give weight accordingly. In determining the weight to be given to, the testimony of witnesses, you are authorized to consider their relationship to the parties when the same is proved, their interest, if any, in the event of the action, their temper, feeling or bias, if any has been shown, their demeanor on the stand, their means of information and the reasonableness of the story told by them, and to give weight accordingly.”
Although the form of instruction criticized was not good and should not have been used, we are of the opinion that its insufficiency was not clearly pointed out and also that “prejudicial error cannot be predicated upon the erroneous clause, in view of the whole charge.” Citizens’ State Bank v. Bailey, supra.
Other errors have been, assigned. These have been considered. But, after a careful examination, we are unable to say that the trial judge abused his discretion in denying a new trial.
The judgment and order appealed from are affirmed.