Cameron v. Wentworth

• Decision Date: 22 June 1899
• Citation: 57 P. 648,23 Mont. 70
• Parties: CAMERON v. WENTWORTH.
• Court: Montana Supreme Court

57 P. 648

23 Mont. 70

CAMERON v. WENTWORTH.

Supreme Court of Montana

June 22, 1899

Appeal from district court, Lewis and Clarke county; Henry C. Smith Judge.

Action by Duncan Cameron against George Wentworth. Verdict and judgment for plaintiff. From an order granting a new trial plaintiff appeals. Affirmed.

H. G McIntire, for appellant.

C. B. Nolan and A. I. Loeb, for respondent.

HUNT J.

Plaintiff brought two separate actions in claim and delivery to recover possession of two certain race horses. By consent, the two suits were consolidated for the purposes of trial. Plaintiff recovered a verdict, and judgment was entered in his favor. Defendant, Wentworth, moved for a new trial, which motion was granted. Plaintiff appeals from the order granting a new trial.

1. One of the grounds upon which the court granted the motion for a new trial was its error in giving the following instruction: "It is the duty of the jury, in passing upon the credibility of the testimony of several witnesses, to reconcile all the different parts of the testimony, if possible. It is only in cases where it is probable that a witness has deliberately and intentionally testified falsely as to some material matter, and is not corroborated by other evidence, that the jury is warranted in disregarding his entire testimony. Although a witness may be mistaken as to some of his evidence, it does not follow, as a matter of law, that he has willfully told an untruth, or that the jury would have the right to reject his entire testimony."

Plaintiff contends that the word "probable" was used for "palpable" by mistake, and that the error, if any was not calculated to mislead the jury. This argument is premised upon the assumption that, if "palpable" had been used, the instruction would have been a correct statement of the law, --an assumption which respondent seems to have regarded as well taken, and which, for the moment, we will not disturb. It is undoubtedly the rule that, where a witness has willfully sworn falsely as to any material matter upon the trial, the jury is at liberty to discard his entire testimony, except in so far as it has been corroborated by other credible evidence; but we do not understand that the right to so discard testimony follows, if it be merely probable that the witness has willfully sworn falsely. In other words, there must be a belief in the minds of the jury that a witness has actually and knowingly testified falsely as to some material matter before they are at liberty to eliminate his testimony entirely; but a belief that an actual fa ct exists requires a considerably stronger support than does a belief that it probably exists. If a witness has palpably sworn falsely, it is almost self-evident that he has done so. The range of probability is passed over, and it has become more than likely that he has testified falsely, knowingly and intentionally. Therefore, where perjury is palpable, there need be no extended discussion upon which to base a finding that the witness has willfully testified falsely. The jury may at once act upon the fact so obviously or palpably demonstrated. But to say that a jury can discard testimony, if they conclude that a witness has probably perjured himself, is to authorize deliberation, not upon the question of whether he has willfully sworn falsely, but upon whether it is likely he has done so. So, although the jury might not say they believed the witness did willfully testify falsely, yet, if they could say that it was probable or likely that he did so testify, nevertheless the right to discard the entire testimony would exist. Reasoning along this line carries us to where it is easily seen that a jury would diverge in their consideration of evidence, and too often overlook the necessity for belief in existing facts, amid metaphysical groupings for probabilities, to enable them to ignore testimony. They should not be allowed to do this; for if, in their judgment, probability of perjury alone exists, they cannot legally give that effect to evidence which they may, if, in their judgment, the fact of perjury exists as demonstrable beyond a mere probability that it exists. Therefore, to expressly authorize a jury to act, in discarding testimony, on probability, is wrong. It becomes an authorization to them to judge of the effect of evidence arbitrarily, and weakens, if it does not break down, the force of that other and salutary rule which always confines the power of a jury to form a judgment upon evidence within the exercise of legal discretion, and in subordination to the rules of evidence. But it is our opinion that the premise which would regard the instruction as sound, if it had read "palpable," instead of "probable," is false and unsound, and that the instruction would still be inherently bad with the word "palpable," imported into it, for the reason that it circumscribes the power of the jury in giving effect to evidence by limiting their right to discard the testimony of a witness to those instances only where it is palpable the witness has...