89 P. 831 | Mont. | 1907
delivered the opinion of the court.
The defendant was convicted of grand larceny and has appealed from the judgment condemning him to a term of imprisonment in the state prison. He complains of errors in the ■instructions.
Paragraph 8 of the charge is as follows: “You are instructed as a matter of law that, if other things are equal, affirmative testimony is in general entitled to more weight than negative testimony; that is, a witness who testifies that he saw a certain thing is entitled to more credit than a witness who testifies that he did not see the thing, if such witness giving such affirmative testimony has not been impeached. ’ ’
It is often the case that a positive statement by a witness that a particular event, which is in question, occurred, is entitled to more weight than a negative statement by another that it did not occur. But this is not always so. It frequently happens that, where both witnesses are otherwise equally credible, the negative statement is entitled to as much weight as the positive statement, owing to the superior means of observation possessed at the time by the witness making the negative statement. So, again, it is frequently the case that a statement, negative in form, is a positive statement of a fact. The ■ credibility of a witness in such case does not depend at all upon the form in which the statement is made, but upon the apparent truthfulness, intelligence, interest, and other like considerations that go to his credit. In other words, his evidence, though negative in form, must be tested by the general rule applicable to determining the weight of testimony. In general, it may be said that so much depends upon the circumstances of the particular ease that no general rule on the subject can be laid down, further than to say that a trial court should not instruct the jury that positive testimony is entitled to greater weight than negative testimony, without careful qualification with reference to the attendant circumstances. (2 Elliott on Evidence, sec. 697; 17 Cyc. 801-805, and cases cited.)
The judgment is reversed, and the cause remanded for a new trial.
Reversed and remanded.