Argabright v. State

• Citation: 69 N.W. 102,49 Neb. 760
• Decision Date: 02 December 1896
• Docket Number: 8148
• Parties: JOHN W. ARGABRIGHT v. STATE OF NEBRASKA
• Court: Supreme Court of Nebraska

69 N.W. 102

49 Neb. 760

JOHN W. ARGABRIGHT v. STATE OF NEBRASKA

No. 8148

Supreme Court of Nebraska

December 2, 1896

ERROR to the district court for Nemaha county. Tried below before BABCOCK, J.

REVERSED AND REMANDED.

W. H Kelligar and John S. Stull, for plaintiff in error.

A. S Churchill, Attorney General, and George A. Day, Deputy Attorney General, for the state.

OPINION

HARRISON, J.

The plaintiff in error was, by an indictment filed in the district court of Nemaha county, charged with the crime of murder, and after a plea of "not guilty" was placed on trial. As a result of the trial he was convicted of manslaughter, and after motion for new trial was heard and overruled, he was sentenced to imprisonment in the penitentiary for a term of ten years. To obtain a review of the proceedings had during the trial, the case is presented to this court by petition in error.

No bill of exceptions has been filed in the case by plaintiff in error, for reasons which we need not here recount or notice having been unable to obtain one; hence we can consider no other or further of the errors assigned than such as are fully apparent in the transcript prepared by the clerk of the district court. Of these one is that the court erred in giving instruction numbered thirteen of those requested to be given by the state. The instruction attacked is as follows: "If the jury believe from the evidence that the witnesses Lewis Morris, Hilton Stanley, and Perry Waltz have willfully sworn falsely on this trial as to any matter or thing material to the issue in the case, then the jury are at liberty to disregard their entire testimony, except in so far as it has been corroborated by other credible evidence, or by facts and circumstances proved on the trial." It is contended that this portion of the charge of the court is erroneous, in that it singled out certain individuals of the witnesses and directs especial attention to them and their testimony, respectively. That such action of the trial court was well calculated to induce a belief or an impression in the minds of the jury, or in the mind of any one or more of them, of the court's disbelief of the testimony of the witness or witnesses specifically named, or at least that the court viewed it with suspicion and felt inclined to discredit it.

One of the governing principles of the question involved is that it is for the jury, and not the court, to pass upon the credibility of witnesses and to determine the weight to be accorded their testimony (Hedman v. Anderson 6 Neb. 392; Heldt v. State, 20 Neb. 492, 30 N.W. 626; State v. Cushing, 29 Mo. 215; Shellabarger v. Nafus, 15 Kan. 547; State v. Stout, 31 Mo. 406); and extending this doctrine and applying it to an instruction on the maxim, Falsus in uno, falsus in omnibus, "the credibility of a witness who knowingly testifies falsely as to one or more material facts is wholly a matter for the jury." (Schuek v. Hagar, 24 Minn. 339.) "It is error to single out a particular witness and to direct such a cautionary instruction, although couched in proper terms against his testimony. The reason is that such a course tends to convey to the minds of the jury the impression that the testimony of the particular witness is disbelieved by the judge and is to be disregarded,--a question which it is their province to determine, and not his." (2 Thompson, Trials, sec. 2423, p. 1772.) "It is not usual for a court to point out a particular witness and tell the jury to disregard his testimony if they think he has testified falsely in any material particular; and when this is done, and all instructions upon the defense which this witness' testimony tends to establish are refused, the jury must understand the court to be of opinion that no case of self-defense is made out; in other words, that the testimony of the suspected witness is entirely unworthy of credit. This conclusion may be correct, but it is the province of the jury, and not of the court, to pass upon the credibility of witnesses." (State v. Stout, 31 Mo. 406.) "It is improper for the court to instruct the jury as to the weight they should give to particular testimony, or to the testimony of a particular witness, or to put a particular witness into undue prominence by charging the jury to find according to their belief in his evidence, if such charge tends to ignore other testimony; citing Chase v. Buhl Iron Works, 55 Mich. 139, 20 N.W. 827; Springett v. Colerick, 67 Mich. 362, 34 N.W. 683. On the other hand, a trial judge has no right so to instruct the jury as manifestly to reflect upon a particular witness; citing Grand Rapids & I. R. Co. v. Martin, 41 Mich. 667, 672, 3 N.W. 173; Wheeler v. Wallace, 53 Mich. 355, 19 N.W. 33." "An instruction that if the jury find that any witness has testified falsely as to any material fact in the case, they are at liberty to reject and disbelieve all of his testimony, clearly and sufficiently states the law on the subject, and it is not error for the court to refuse to give a request applying such rule to a particular witness and challenging the attention of the jury to particular portions of his testimony, which the request assumes as false." (Fraser v. Haggerty, 86 Mich. 521, 49 N.W. 616.) "It is not proper for the court, in a criminal case, to designate the evidence of a witness who is not an acknowledged accomplice, and caution the jury against giving credence to it. Casting the influence of the court against the testimony of a particular witness, or the character of the evidence he gives, is not the usual way of either affecting the credibility of witnesses or the weight of testimony." (Rafferty v. People, 72 Ill. 37.) In the case of State v. Kellerman, 14 Kan. 135, it was said: "Where an instruction is asked that if a particular witness, naming him, has willfully testified falsely, etc. the justice should disregard his entire testimony, it is not error...