Roberts v. State

Hart, J.

Jack Roberts prosecutes this appeal to reverse a judgment of conviction against him for the crime of selling intoxicating liquors in the Fort Smith District of Sebastian County, Ark., on the 15th day of July, 1922.

His only assignment of error is that the court erred in giving instruction No. 2, which is as follows:

“You are the sole judges of the credibility of the witnesses and the wieght that should be given to their testimony. It is your duty to reconcile the statements of these different witnesses, so as to believe as much of this testimony as you can, but if you cannot do so on account of contradictions, then you have the right to believe the witnesses whom you think the most worthy of credit, and disbelieve the witnesses who you believe from the evidence to be the least worthy of credit. And if you find any witnesses have wilfully sworn falsely to any material facts in: this case, you may disregard their whole testb mony if you believe it to be false, or believe that part which you think true, ana disbelieve that part which you regard to be false. And in weighing a witness’ testimony you may take into consideration his candor or lack of candor, his knowledge about the thing he testifies, the reasonableness or unreasonableness of his testimony, and his interest', if any be shown, in the result of your verdict.”

Counsel for the defendant claim that the instruction is open to the objection that it tells the jury that, if it finds that any witness has wilfully sworn falsely to any material fact in. issue, it may disregard all the evidence of such witness, if it sees fit to do so, and rely upon the decision of Mangrum v. State, 156 Ark. 306, and cases cited for a reversal of the judgment.

We do not think that the instruction is of similar import to any of the instructions referred to in those cases. While we do not approve the form of the instruction, we do hold that it is free from the criticism of the instructions in the cases cited.

The object of all testimony is to establish the truth, and the jury is the judge of the credit to be given to the witnesses. The true rule is that the credibility of a witness who knowingly testifies falsely as to one or more material facts is wholly a matter for the jury. It may believe or disbelieve his testimony as to other facts according as it deems such testimony worthy or unworthy of belief. Hence it is an invasion of the province of the jury to tell it that it may disregard the entire testimony of a witness whom it may believe to have testified falsely as to a material fact.

The present instruction is not open to that criticism because it tells the jury that, if it-believes any witness has testified falsely to a material fact, it may disregard his whole testimony if it believes it to be false, or it may believe that part which it thinks true and disbelieve that part which it regards false. By this the court meant to tell the jury that, if it found a witness to have wilfully testified falsely on a material point, it might disregard his whole testimony if it believed the whole of it to be false.

Therefore the instruction was technically correct, and an instruction in'substantially the same language has been recently approved in the case of Bryant v. State, 156 Ark. 580.

It follows that the judgment will be affirmed.