State v. Dwire

• Citation: 25 Mo. 553
• Parties: THE STATE, Defendant in Error, v. DWIRE et al., Plaintiffs in Error.
• Decision Date: 31 October 1857
• Court: United States State Supreme Court of Missouri

25 Mo. 553

THE STATE, Defendant in Error,

v.DWIRE et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1857.

1. Where the facts in evidence will warrant it, the court should instruct the jury that they may reject the whole of the testimony of a witness who has willfully sworn falsely in regard to any material fact.

Error to St. Louis Criminal Court.

L. M. Shreve, for plaintiffs in error.

C. G. Mauro (circuit attorney), for the State.

RICHARDSON, Judge, delivered the opinion of the court.

The defendants were indicted for a riot that occurred at a fire in the city of St. Louis. One of the witnesses called by the State testified that he saw three of the defendants present participating in the riot, and on his cross-examination, in answer to a question put by defendants, he denied that he had stated to two persons, whose names were given, that he had not seen Dwire at the fire--one of the defendants whom he had implicated. The defendants afterwards introduced the persons referred to in the question, who contradicted the witness, and testified that, at the time and place indicated in the question, he told them that he had not seen Dwire on the night of the fire.

At the close of the evidence the court refused an instruction, asked by the defendants, to the effect that if the jury believe from the evidence that the witness willfully testified falsely to any material fact in the trial, they were authorized to discard the whole of his testimony.

The instruction did not assert a mere abstraction, but was warranted by the state of the evidence in the case; and being drawn in the words of an instruction approved by this court, in Gillett v. Wimer, 23 Mo. 77, it ought to have been given. The facts in evidence that will warrant this instruction are not necessarily such as even to create a suspicion in the mind of the judge that the witness has knowingly sworn falsely to any material matter; for it may often happen that his evidence will be received with perfect confidence in its truth, while that of his assailants will be disregarded. But when a witness is contradicted in a material fact, it is for the jury to pass on his credibility, and the party against whom the evidence is given is entitled to the declaration of law from the court contained in the refused instruction. Other witnesses implicated the defendants, but this court cannot tell how far the verdict was influenced by the testimony of this witness; and though the jury may believe that he had...