Citation Numbers: 36 How. Pr. 94
Judges: Leonard, Sutherland
Filed Date: 7/15/1865
Status: Precedential
Modified Date: 1/12/2023
There were certainly material discrepancies between the affidavit of Knapp before the police magistrate and his evidence on the trial; and the evidence tended to show that he had given a somewhat different account of the transaction in conversations with various persons.
The prisoner was convicted on the testimony of Knapp alone.
■ According to the return, the charge of the city judge was as follows: “ You have heard the evidence of Knapp; you can judge by his manner, and by his statement before you, what degree of credit you will give to his testimony. It is a matter resting purely with yourselves, irrespective of any
It appears to me that this was, in substance, instructing the jury that, in judging of the credit to be given to Knapp’s testimony, they must disregard the discrepancies between the affidavit and his testimony, and his contradictory statements.
If the jury probably and naturally inferred that the charge meant this, there must be a new trial.
I cannot see what other construction can be put upon the charge. The word irrespective means, not regarding, or considering, regardless of.
The district attorney, I have no doubt, had a right to read the whole affidavit to the jury, but I think there must be a new trial, on the ground of the error in the charge of the judge.
I think the word “irrespective” was probably intended by the judge to mean “uncontrolled,” and that the jury well enough understood that their discretion was not controlled by the contradictions of the witness, so that they were precluded from crediting him.
It may have been otherwise, and as Judge Sutherland
Barnard, J., dissented.