Beasley v. Bank

• Decision Date: 31 October 1905
• Citation: 89 S.W. 1040,114 Mo.App. 406
• Parties: BEASLEY, Respondent, v. JEFFERSON BANK, Appellant
• Court: Missouri Court of Appeals

89 S.W. 1040

114 Mo.App. 406

BEASLEY, Respondent, v. JEFFERSON BANK, Appellant

Court of Appeals of Missouri, St. Louis

October 31, 1905

Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.

AFFIRMED.

STATEMENT.

The defendant asked and the court refused the following instructions:

"The jury are instructed that they are the sole and exclusive judges of the credibility of the witnesses and the weight of their testimony, and in weighing their testimony the jury have the right to consider his or her demeanor upon the stand, their manner in testifying, their interest in the case and their general reputation for unchasteness or immorality if you find from the evidence that any witness has such reputation, and if the jury believe from the evidence that any witness has willfully sworn falsely to any material fact in issue in this case, then the court instructs the jury that they have a right to disregard the whole or any part of the testimony of any such witness.

"The court instructs the jury that it is admitted in this case that the plaintiff is an inmate of a house of ill-fame and an unchaste woman, and the court further instructs the jury that they may take into consideration such fact in determining the degree of credibility and the weight to be given to her testimony in this case. "

Judgment affirmed.

Block & Sullivan for appellant.

(1) Evidence of a general reputation for unchastity is admissible for the purpose of affecting the credibility of a witness. State v. Shroyer, 104 Mo. 446; State v Hack, 118 Mo. 96; State v. Raven, 115 Mo. 423. (2) In this State you are not confined, for the purpose of affecting the credibility of a witness, to proving the general reputation of the witness, but may show that the witness has particular vices. State v. Sibley, 132 Mo. 102; Sitton v. Grand Lodge, 84 Mo.App. 211. (3) The two instructions prayed for by appellant, and refused by the court, should have been given in the form in which they were prayed. Feary v. Railroad, 162 Mo. 105; State v. Weeden, 133 Mo. 77; State v. Miller, 93 Mo. 270; State v. Napper, 141 Mo. 407; Hartpence v. Rogers, 143 Mo. 634; Railroad v. Crancher, 132 Ind. 277; Rose v. Otis, 18 Colo. 62; Zimmerman v. Railroad, 71 Mo. 491; Murray v. Transit Co., 176 Mo. 190.

H. M. Dalton and H. J. Gorin for respondent.

(1) When the instructions in a case, taken as a whole, properly present it to the jury, the fact that one of them, standing alone, would be misleading, will not cause a reversal of the judgment of the trial court. Deweese v. Meramec Iron & Mining Co., 128 Mo. 423; Am. and Eng. Ency. of Law, p. 250; Dougherty v. Railroad, 97 Mo. 647; Muelhausen v. Railroad, 91 Mo. 332; McKeon v. Railroad, 43 Mo. 405. (2) If a court instructs a jury to consider all facts brought out in evidence, it is not error for it to refuse to indicate particular points in the evidence suggested by the defendant's counsel in his request for instructions. 73 Iowa 351; State v. Horn, 115 Mo. 417; Burdict v. Railroad, 123 Mo. 221; McFadin v. Catron, 120 Mo. 252; State v. Shroyer, 104 Mo. 441; Bodin v. Creel, 63 Mo.App. 229; Chaney v. Ins. Co., 62 Mo.App. 45; Noyes, Norman & Co. v. Cunningham, 51 Mo.App. 194; State v. Baldwin, 56 Mo.App. 423. (3) The judge is not at liberty to point out a particular witness and express an opinion as to his credibility, or as to the weight which the jury should attach to such witness's testimony. 1 Blatchfield, Instructions to Juries, par. 106; Thompson on Charging the Jury, p. 58. (4) Instructions calling attention to the veracity of witnesses are not favored by the courts, and their propriety and necessity are left entirely to the discretion of the trial court. White v. Lowenberg, 55 Mo.App. 69; State v. Miller, 93 Mo. 263; White v. Maxey, 64 Mo. 559; State v. Hickam, 95 Mo. 332; McCormick v. City of Monroe, 64 Mo.App. 197.

OPINION

GOODE, J. (after stating the facts).

This action was instituted to recover a balance of $ 777 alleged to have been deposited by the plaintiff in the defendant bank and never to have been withdrawn by her. In defense it was contended the money had been paid out in the regular course of business on checks signed by the plaintiff. Eleven checks covering the amount in dispute and bearing plaintiff's name were put in evidence by the defendant. Plaintiff denied signing those checks and asserted her signature on them had been forged. Some experts swore the signatures were genuine, and one or two persons familiar with plaintiff's handwriting, that they were spurious. The trial court gave instructions which are not questioned on all the issues save as to the credibility of the plaintiff. In a general instruction the court told the jury they were the sole judges of the credibility of the witnesses and in passing on their credibility might take into consideration all the facts and circumstances shown by the evidence. Plaintiff had herself testified that her reputation for chastity was bad; that she was a public prostitute and had been an inmate of a bawdyhouse three years or more. The bank contends that this testimony entitled it to an instruction directly calling the jury's attention to plaintiff's unchaste life and telling them they might take that fact into consideration in deciding as to the degree of credibility to be allowed her and the weight to be given to her testimony. The two instructions we have copied were requested by the defendant on the issue of plaintiff's credibility as a witness. Their refusal is the only error assigned on the appeal.

In this State a witness may be discredited by proof that the witness bears the reputation of being unchaste. [State v Sibley, 132 Mo. 102, 33 S.W. 167, 131 Mo. 519; State v. Shroyer, 104 Mo. 441, 16 S.W. 286.] The trial court permitted the defendant to inquire concerning plaintiff's reputation for chastity, for the purpose of weakening her credibility and she confessed herself a prostitute. Did this confession bind the court to instruct the jury more definitely on the point of credibility than was done by telling them they might consider all the facts and circumstances in evidence in passing on a witness's credibility? Was he bound to instruct specifically that they might consider the fact that plaintiff was unchaste and a harlot? The giving of the common instruction that the jury is the sole judge of the credibility of witnesses and may disregard the testimony of any witness who has sworn falsely to a material fact, is a point of practice intrusted to the discretion of the trial court and not to be controlled on appeal except for manifest abuse. State v. Hickman, 95 Mo. 322, 8 S.W. 252; White v. Maxcy, 64 Mo. 552.] The first of the refused instructions comes within that rule. Some able judges have opposed the giving of a credibility instruction even in that general form; and all agree that it is not to be given except in the discretion of the trial court, with caution and where there are facts in evidence which render it probable, in the estimation of the judge, that there has been false swearing. [Schmidt v. R. R., 149 Mo. 269, 50 S.W. 921.] This question was dwelt on in McCormick v. City of Monroe, 64 Mo.App. 197, 201, in a manner unfavorable to such charges, save in exceptional circumstances; and in White v. Lowenberg, 55 Mo.App. 69, they were said to be regarded with disfavor. The reason why the courts hold to that view is that such an instruction is likely to be taken by the jury as an intimation that the judge trying the case believe some of the witnesses had testified falsely. [White v. Maxey, supra.] By the same reasoning, if a particular witness is named in a cautionary instruction regarding credibility, as was done in the second of the refused instructions in ...