75 Neb. 153 | Neb. | 1905
The plaintiff in error was convicted of the crime of stealing certain cattle of the value of $120, while they were in his possession as bailee, and was sentenced to'the penitentiary for the period of three years. To reverse said judgment he brings the case to this court.
By the second assignment of error it is contended that the district court erred in refusing to give the jury paragraph five of the instruction asked for by the plaintiff, which reads as follows: “The jury are instructed that they are the sole judges of the credibility of the witnesses, and of the weight to be given to their testimony. In determining such credibility and weight they will take into consideration the character of the witness, his manner on the stand, his interest, if any, in the result of the trial; his relation to, or feelings toward, the parties; the probability or improbability of his statements, as well as the facts and circumstances given in evidence. And in this connection you are further instructed that, if you believe that any witness has wilfully and knowingly sworn falsely to any material fact, you are at liberty to reject all or any portion of such witness’ testimony.” Not only was this instruction refused, but the court failed to instruct the jury on that point on his own motion.
It appears that one G. W. Bentley was the prosecuting witness, and claims to have been the owner of the animals alleged to have been stolen; that he delivered 12 head of cattle, consisting of 7 heifers and 5 steers, to the plaintiff to be pastured during the season of 1904, at the agreed price of 25 cents a head per month; that during the summer
It is conceded by the state that the instruction tendered •was incorrect in this: That it should have contained the qualifying words, “unless corroborated by other competent proof.” We are satisfied that the weight of authority is opposed to such a qualification. The question was carefully considered by this court in Atkins v. Gladwish, 27 Neb. 841, where an instruction in the following language was approved: “If the jury believe that any witness in this case has knowingly sworn falsely to any material matter in this case, then you are instructed that this would justify you in disregarding the testimony of such witness entirely.” In the body of the opinion, Judge Cobb, speaking for the court, said :
“The maxim, ‘falsus in uno, falsus in omnibus/ is one of general acceptation; but there is quite a diversity of opinion in the reported cases as to how it should be expressed in an instruction to a jury. It is not my purpose to compare the instruction above quoted with those which have been approved or disapproved in the courts of other states, but to say that I do not find the weight of authority or the reason of the case to indispensably require such charge to be qualified by the addition of the words ‘unless corroborated.’ Indeed, if the witness may not be believed unless corroborated, but may not be disbelieved if corroborated, even then credence is given alone to the corroborating testimony, and not to that of the implicated witness.”
In Dell v. Oppenheimer, 9 Neb. 454, the syllabus states the rule as folloAVS:
“Where a party swears falsely to a fact in respect of which he cannot be presumed liable to mistake, courts are bound to apply the maxim ‘falsus in uno, falsus in omnibus/ and to give no credit to any alleged fact depending upon his testimony alone.”
The rule thus stated was approved in Freiberg v. Treitschke, 36 Neb. 880. In Johnson v. State, 34 Neb. 261,
“Error is assigned on the refusal of the court to give the following instruction requested by the defendants: ‘If you find that any witness testified falsely as to any material point, you may disregard all he testified to unless corroborated by other competent proof.’ This instruction omitted an important element, and was, therefore, properly refused. The rule is that the jury are authorized to disregard the entire -evidence of an uncorroborated witness where his testimony upon a material point is wilfully and corruptly false.”
It must be observed that the instruction in that case was disapproved, not because it did not contain the words, “unless corroborated by other competent evidence,” but be
So we are constrained to hold, both on principle and upon the weight of authority, that the court erred in refusing to give the instruction in question. Having reached this conclusion, we find it unnecessary to consider any of the other assignments of error.
For the foregoing reasons, the judgment of the district court is reversed and the cause remanded for a new trial.
Reversed.