Wofford v. State

Criminal Law. Instructions. Weight of evidence. An instruction that, “if the jury believe that any witness has testified falsely in the case to any material matter, they have a right to reject all of the testimony of such witness, if they see proper,” is erroneous in omitting the qualifying clause that the false swearing must have been intentionally and corruptly done.

Appeal from the circuit court Chickasaw county. Hon. John H. Mitchell, Judge. Charles. F. Wofford was convicted of manslaughter and 'appeals. The facts are as follows: On appeal accused assigns as error the granting of instruction No. 4 asked by the state, which is as follows : “No. 4. The court charges the jury that they have a right, in passing on the weight of the evidence of any witness, to take into consideration the interest the witness may have in the case, one way or the other, if any is shown; and in this case, if they believe that any witness has testified .falsely to any material matter, they have a right to reject all of the testimony of said witness, if they see proper.” The first error I notice is the giving of instruction No. 4 on part of the state. That instruction reads as follows : “The court charges the jury that they have a right, in passing on the weight of the evidence of any witness, to take into consideration the interest the witness may have in the case, one way or the other, if any is shown, and in this ease, if they believe that any witness has testified falsely to any material matter, they have a right' to reject all of the testimony of said witness if they see proper. This instruction has always been condemned by this court. It invokes the rule or maxim “falsus in uno, falsus in omnibus,” and fails to submit to the consideration of the jury, all the elements that make up the. rule of law on the subject. The draftsman failed to tell the jury that the witness has “willfully and corruptly” sworn falsely as to a material fact. As said by this court, in White v. State, 52 Miss. 227, “The false swearing must be willful. The prayer does not exclude the idea of mistake or misconception.” White'v. State, 52 Miss. 216. This doctrine was in substance supported by the court in Finlay v. Hunt, 56 Miss. 22. This identical instruction was condemned by this court in Vicksburg, etc., R. Co. v. Herrick, 62 Miss. 28, in the following language : “The second instruction given for the plaintiff is erroneous. The maxim of falsus in uno, falsus in omnibus cannot be invoked except where the witness has intentionally given false testimony.” In Sardis $ D. R. •Co. v. McCoy, 85 Miss. 391, 37 So. 706, this court said as to an instruction almost exactly like the one here: “We again announce that where jurors are instructed as to their right to reject the testimony of witnesses on the ground that they have sworn falsely to any part of their testimony, the instruction should always contain the limitation that such false swearing was ‘willfully, knowingly'and corruptly’ done. The instruction under review does not contain this necessary qualification.” This same doctrine is positively recognized and adhered to in the following cases from this court: Davis v. State, 89 Miss. 119, 42 So. 541; Bell v. State, 90 Miss. 104, 43 So. 84; Turner v. State, 50 So. 629; Waldron v. State, 54 So. 66; Riley v. State, 75 Miss. 352. Other eminent authorities which unqualifiedly condemn this instruction are 30 Amer. & Eng. Ency. Law (2d Ed.), p. 1072, substitute “falsus in uno, falsus in omnibus” and many decisions cited. Vol. 1, sec. 254, Blashfield’s' Instructions to Juries and the long list of cases cited in the notes; Wigmore on Evidence, secs. 1008 to 1015. The fourth instruction would, under ordinary circumstances, in my judgment, be erroneous, because of the omission of the words, “knowingly,- willfully or corruptly,” or words similar. It is hard, however, to con-, ceive that the jury were misguided in this particular case, though our court has always, where facts are disputed, held, that an instruction on the doctrine of “falsüs in 'uno, falsus in omnibus” should contain the words here omitted. The Waldrop case, 54 So. Eep. 66, may save this instruction. I submit the question to the court.