Gillett v. Wimer

RylANd, Judge, delivered the opinion.of the court. The only question considered material in this case is the one arising from the refusal of the court below to give the following instruction asked for by the defendants: “ If the jury believe from the evidence that the witness (Cross) wilfully testified falsely with regard to any material fact, they are authorized to discard the whole of his testimony.” From the record, we see-that there was but one witness for the plaintiff, the witness Cross ; and that his testimony was contradicted by other witnesses, on the part of the defendants. So the instruction was not merely an abstract one, but was authorized by the evidence. Was it lawful, then, to give it ? This question was before this court in the case of the State v. Mix, (15 Mo. 153,) and a similar instruction was decided to be proper, and that it was error to refuse to give it. The decision in this case of the State v. Mix we consider as declaratory of principles well established, and therefore the court below erred in refusing to give the jury the instruction. It has been said, that, if witnesses concur in proof of a material fact, whatever may be the other contradictions in their testimony, they ought to be believed in respect to that fact. That position may be true under circumstances ; but it is a doctrine which can be received only under many qualifications, and with great caution. If the circumstances respecting which the tes [79] timony is discordant be immaterial, and of such a nature that mistakes may easily exist, and be accounted for in a manner consistent with the utmost good faith and probability, there is much reason for indulging the belief that the discrepancies arise from the infirmity of the human mind, rather than from deliberate error. But where the party speaks to a fact in respect to which he can not be presumed liable to mistake — as in relation to the country of his birth, or his being in a vessel on a particular voyage, or living in a particular place, — if the fact turn out otherwise, it is extremely difficult to exempt him from the charge of deliberate falsehood. Courts of justice, under such circumstances, are bound, upon principles of law and morality and justice, to apply the maxim, falsus in uno, falsus in omnibus. What ground of judicial belief can there be left when the party has shown such gross insensibility to the difference between right and wrong, truth and falsehood? (The Santisima Trinidad, 7 Wheat. 338-9, per Story, J.) We think that, in order to enable the jury to understand their rights and privileges, and do justice to the parties, wherever the testimony calls for such an instruction, the courts ought to give.it. The jury are to weigh the evidence, the manner of detailing it by the witnesses, and to give it such credence as in their opinion it deserves. We do not say that it would be error for the court below to refuse to instruct a jury in such cases to reject the testimony of the witness entirely. Such instruction had better never be given; but it is the duty of the court to let the jury weigh the evidence, and to advise or instruct them that they are authorized to reject or to believe such portions of it as, in their minds, accord with the truth. It is for the jury to believe or disbelieve — the court can not tell them how much. In this case, there being a contradiction of the only witness for the plaintiff, and that, too, in a matter material to the merits of the controversy between the parties, the court ought to have given the instruction asked for by the defendants. The judgment below is reversed, and the cause remanded; the other judges concurring.