Warren v. Haight

By the Court, P. Potter, J. The respondent contends that Warner having sworn falsely upon a question material to the issue, his testimony must be disregarded; and there being no other testimony for the defendants, the court was correct in talcing the case from the jury. I cannot concur in the soundness of this argument, either as to the truth of its premises, or the justness of its conclusions. The case of Dunlop v. Patterson, (5 Cowen, 243,) is at best ambiguous. It does not clearly appear from the opinion whether the judgment was reversed because the evidence of the perjured witness should have been entirely disregarded, or because the court had not,properly instructed the jury in regard to the weight which they should give to it. It is qualified by The People v. Evans, (40 N. Y. 5, 6.) And the authority of the latter case has, to my mind, been entirely destroyed by the case of Dunn v. The People (29 N. Y. 526, 528.) It is true, in the opinion of Ingraham, J., a distinction is made between a case where the false swearing was upon matter material to the issue, and where it was otherwise, but no such distinction is recognized by the chief justice. It is a rule, that a witness is competent until a judgment for felony is introduced against him; and that the question of credibility is entirely for the jury, under proper instruc [493] tians from the court. But I am further of the opinion that the false swearing was not proved. The identity of the note in suit with either of the notes referred to in Warner’s answer was proved only by Miner’s testimony. It is simply oath against oath. And the statements are not necessarily contradictory, even if the notes are the same. In the answer, Warner swears that “he does not now hold or own the notes, arid has not, since this action was commenced.” In this action he swears that he never transferred it to the plaintiff. Both these stateinents may be true. If in the latter he meant a written transfer, that was true. And it must be borne in mind that his answer was prepared by his counsel, Miner, through whom the plaintiff claims title. And Warner swears he did not take it in his hand; and can’t tell whether it is his answer or not; that Miner read a paper to him in the jail; he signed it and swore to it; that he don’t remember that he stated that he did not own this note. He did not read the answer himself, and was not aware that the ownership' of the note was denied. That he signed it without knowing that fact. I am further of the opinion that there was evidence for the defendants, besides Warner’s. The plaintiff's declarations, sworn to by Warner’s daughter, tend to show that Warner received the note,.not by a transfer to himself or Miner, but to collect for Warner’s family. An inference could be legitimately drawn, from this evidence, that Warren received the note by virtue of an authority from Warner, which Warner could revoke by an assignment to Mrs. Newton. Upon the whole case, it is my opinion that a verdict for the defendant would have been sustained, as warranted by the evidence. It is a safer rule, in such cases, for the judge carefully to instruct the jury as to'the weight to be given to evidence; to call their attention to the circumstances under which apparently contradictory evidence was given; to the influ [494] enees under which such statements were obtained or made; if made in writing, whether deliberately written by the witness himself, or whether prepared by another, whose interest it was to have the statement in a particular form; ■whether the statement was read and fully understood by the witness; or whether it was signed in the full confidence that it was right, upon thé statement of another. All these circumstances, it seems to me, were involved in this case; and as it is the especial province of a jury to weigh and consider them, I am of opinion that, the learned judge ought to have submitted all these circumstances and considerations to the jury, whose united judgment is the ' safest reliance. [Third Department, General Term, at Elmira, May 7, 1872. Millin, P. J., and P. Potter and Balcom, Justices.] If testimony apparently contradictory can be reconciled; if by any proper view, it can all be made consistent, this it is the duty of courts, as well as juries, to attempt. Its weight is never a question of law, for a court, except in cases where it cannot be so reconciled and explained. Such, it séems to me, was not this case. While there fa ay be strong suspicions of want of integrity in the evidence, I do not think it was all on one side. The result is, I think, that the judgment should be reversed, and a new trial granted, costs to abide the. event.