Mercer v. Wright , 3 Wis. 645 ( 1854 )

By the Court,

Smith, J.

Several questions are raised by the bill of exceptions, but as one point is decisive of the case here, and as -the other questions are not likely to arise upon a new trial, they will be passed without comment.

It appears that on the trial in the court below, (the suit being trespass for cutting timber on the plaintiff’s land,) the defendant called as a witness one Miller, who testified that he cut all the timber drawn out and piled on the defendant’s lot, embracing all the timber in question, and that it was all cut on the defendant’s land ; that he did not cut any timber on the plaintiff’s land. In reference to this witness and his testimony, the judge charged the jury as follows :

“ If this testimony be true it makes out a complete defence ; if it was untrue the defendant must have known it, and he is involved in the guilt of the witness. It becomes, therefore, a serious and important question for you to determine, whether Miller swore falsely or truly on this subject,”

"It is a general rule that if a witness when testifying under oath state.-' what is false intentionally and. knowingly, lie is not to be believed in anything he -wears to, unless corroborated by other evidence Now certain questions were asked Miller, as to whether he had a conversation with the plaintiff on the day of the trial before justice Welch — and whether in that conversation he admitted that he had cut the-plaintiff’s timber and was sorry for it. These were material questions, and it is .contended that the witness swore falsely in his answers to them. If you believe he did swear falsely, and intended so to swear on this point, you are not at liberty to believe any fact sworn to by him, unless it is proved, or the witness. is corroborated by other witnesses as to such fact. If Miller 'swore falsely as to the cutting of the timber, it not only does not make out the defences but must on the contrary, operate strongly to show the defendant’s guilt.”

The instructions of the court below are erroneous. It is true, as a general rule, that when a witness deliberately and knowingly swears falsely in regard to one matei’ial fact, the juiy are not bound to believe him in any of his. statements, unless he is coroborated. But it is wrong to say that the jury are not at liberty to believe him. - The maxim, falsus in mo, falsus in omnibus, does not operate to preclude the jury from believing the witness if they choose to do so. The jury may believe any competent witness, though in many instances they ought not. A jury ought not to convict upon the testimony of an accomplice uncorroborated, but all now agree that they may do so. It would have been correct for the court to give the jury general rules by which the credibility of the witnesses is to be 'judged, but it was not correct to tell them that they were not at liberty to believe the witness.

Again, it was error to instruct the jury that if the witness swore falsely, it not only did not make out the defence, but on the contrary, operated strongly to show the defendant’s guilt. The falsehood of a witness called to prove one side of an issue, certainly does not prove it, but neither does it tend necessarily to prove the other side. If Miller was not worthy of credit in his statement that the timber was all cut on the defendant’s land, that did not tend to prove that the defendant cut the timber or procured it to be cut on the plaintiff’s land. It only showed that the witness undex’took to swear to matters as true, which he did not know to be true, or which he knew to be false, but it could not tend to prove the defendant’s guilt, unless the. further fact appeared, that he was implicated in the guilt of the witness.

This instruction being erroneous, and very material» the judgment must be reversed, and a new trial or dered. As the other points raised may all be obviated upon another trial, it is unnecessary to proceed further with the case. • ■

Judgment reversed with costs, and a new trial awarded.