Turner v. State

50 So. 629 | Miss. | 1909

Lead Opinion

Wjtiteielu, C. J.,

delivered the opinion of the court

The fourth instruction asked by the defendant should manifestly have been given. It was in the following words, and was refused: “The court further instructs the jury, for the defendant, that the consideration of the evidence in this case, and determining the weight thereof, and whether the witnesses should be believed or not, is exclusively the province of the jury, and in weighing the evidence in this case, and in saying whether a witness who has testified in this case should be believed, the jury have a right to take into consideration what interest, if any, such witness may have in the case; and if the jury believe from the evidence that any witness in this case has wilfully and corruptly sworn falsely as to any material thing or matter inquired of on the trial of this case, the jury have a right to disbelieve and disregard tire whole and entire evidence of such witness.” The exact counterpart of this instruction was given in the case of McClellan v. State, with the single exception that in this charge the word “knowingly” is omitted; but the words “willfully” and “corruptly” are used, and this instruction was expressly approved in Vails v. State, 94 Miss. 365, 48 South. 725. It is not thinkable that a man can willfully and corruptly swear falsely without also “knowingly” swearing falsely. This charge has been given immemorially in this state, and should manifestly have been given in this case.

It is sometimes said that the maxim, "falsus in uno, falsus in .omnibus,” is not a principle of law at all. Whether it be a principle of law, or whether it be “a principle of logic and common sense,” as it is called in the third volume of Sackett on Instructions, p. 2116, par. (d), is utterly immaterial. Uh■doubtedly, it is a perfectly sound principle and a wise precautionary charge in proper cases, and we think this was- a proper case in which to give this instruction. Certainly, as stated, it is an instruction which has been -given in this state by universal practice of judges for time out of mind, and we see no reason now for departing fro-m a custom which has been so long continued and which we think is a wise and salutary one. Cases are easily conceivable in which to refuse such an instruction as this would unquestionably operate prejudicially to the defendant in the highest degree. Cases may also be conceived in which such instruction would be unnecessary. Whether it should be given in a particular case depends upon the facts of that case, and in this case we think the facts were such as to require the giving of this instruction. The whole case depended upon the credibility of the testimony of the witnesses for the state. These witnesses were assailed most vigorously on the very point as to whether their testimony was true. The case was a very close one on its facts. In this attitude of the case, it seems to us it was a peculiarly appropriate case in which to give this charge, approved in this state time out of mind.

For this reason, the judgment is reversed and cause remanded.

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Dissenting Opinion

Smith, J.,

delivered the following dissenting opinion.

I am unable to concur with my Brethren in the reversal of this cause. This instruction seeks to invoke what this court in Bell v. State, 90 Miss. 104., 43 South. 84, styled the “dangerous,” and in McDonald v. State, 28 South. 750, the “exploded,” doctrine of “Falsus in uno, falsus in omnibus,” and omits the element of the witness’ knowledge of the falsity of the testimony given by him. In Railroad Company v. McCoy, 85 Miss. 391, 37 South. 706, this court said: “We again announce that, where jurors are instructed as to their right to reject the testimony of witnesses on the ground that they have sworn falsely to any part of their testimony, the instruction should always contain the limitation that such false swearing was ‘willfully, knowingly, and corruptly’ done.” This maxim, which is in no sense a rule of law, is such a dangerous one, and the reason it is based on is so questionable, so much so that it has been discarded by eminent authority, including Mr. Wigmore, that where it is invoked the jury ought not to be left in any doubt that the falsity of the evidence must be known to the witness.

But, aside from this, the refusal of the instruction was not error, certainly not reversible error, as will appear from the examination of the following authorities: Commonwealth v. Clune, 162 Mass. 206, 38 N. E. 435; State v. Musgrove, 43 W. Va. 672, 28 S. E. 813; State v. Banks, 40 La. Ann. 736, 5 South. 18; State v. Hickan, 95 Mo. 322, 8 S. W. 252, 6 Am. St. Rep. 54; Paddock v. Somes, 51 Mo. App. 320. In Wigmore on Evidence, vol. 2, § 1008, that great writer says: “The maxim, ‘He who speaks falsely on one point will speak falsely upon all,’ is in strictness concerned, not with the admissibility, but with the weight, of evidence. The jury are told by it what force to give to a falsity after the evidence has shown its existence. . . . It may be said, once for all, that the maxim is in itself worthless, first, in point of validity, because in one form it merely contains in loose fashion a kernel of truth which no one needs to be told, and in the others it is absolutely false as a maxim of life; and, secondly, in point of utility, because it merely tells the jury what they may do in any event, not what they must do, or must not do, and therefore it is a superfluous form of words. It is also in practice pernicious, first, because there is frequently a misunderstanding of its proper force; and, secondly, because it has become in the hands of many counsel a mere instrument for obtaining new trials upon points' wholly unimportant in themselves.”