Ely v. Tesch , 17 Wis. 202 ( 1863 )

By the Court,

PAINE, J.

We can see no error that occurred on the trial, unless it may be found in the instruction given to the jury, that “ if they believed the defendant and William C. Ely were entitled to equal credit, then the testimony of Sals-bury -created a preponderance of testimony in favor of the plaintiff, unless there was some fact or evidence tending to corroborate the defendant.”

It is obvious that this would be erroneous except for, the qualification at its close. Eor it is not proper for a court to say to a jury that when one witness testifies on one side and another on the opposite side, and the two are equally credible the testimony of a third necessarily creates a preponderance on either side. The witness might exhibit such incapacity or prejudice, or want of memory, that the jury might regard him as wholly unworthy of belief. Upon this point the jury are the judges, and they should be left free to exercise their judgment without beiDg trammelled by any instruction from the court that they might suppose binding upon them. What effect then should the qualification at the close of the instruction have upon it? The judge told the jury that the testimony of Salsbury created a preponderance “ unless there was some fact or evidence tending to corroborate the defendant.” Now evidence or facts tending to corroborate the testimony of a witness, would be only such as went affirmatively to give support to his statements. That which went merely to lessen the credibility of a witness who had contradicted him, could not properly be said to corroborate his own evidence. His testimony would still be left without any additional strength. This instruction, therefore, would seem to require the jury, if they believed Tesch and William Ely entitled to equal credit, to find for the plaintiffbecause he-had an additional witness, unless the defendant could point to some evidence tending to give affirmative support to bis statements, so as to counterbalance the supposed effect of Salsbury. And this would exclude all the elements in the testimony of such third witness itself which might go to show him unworthy of credit.

And the very design of the plaintiff in asking such an instruction as this, must have been to obtain from the court something that would impress upon the jury that it was their duty to follow the testimony of two witnesses rather than that of one. The main object was to establish the superiority of mere numbers. And although an attempt was made to qualify the proposition, yet we think, as before shown, that the qualification was not sufficiently broad to prevent the instruction from leaving upon the minds of the jury an undue impression as to the importance of the fact that there were two witnesses against one.

.It is true that the court did, in the course of its charge, tell the jury “they were the exclusive judges of the credibility of witnesses.” But a special instruction upon a particular point, applied by its terms to specific facts in the case, would naturally strike the attention of the jury more forcibly, and be allowed more weight, than a mere general statement. And where there is error in such special instruction, the judgment should be reversed, although there may have been something in the general charge tending to correct it, unless the appellate court can see clearly that the result could not properly have been different. In this case the question in issue was one de- . pending so entirely upon the credibility of the witnesses and the inherent probability or improbability of their respective statements, that it should be determined by a jury under proper instructions.

The cases cited by the appellant show how careful courts have been to avoid trenching upon the province of the jury to determine questions of fact.

The judgment must be reversed, and a new trial ordered.