State v. Waller

• Citation: 259 S.W. 445
• Decision Date: 04 March 1924
• Docket Number: 25235
• Parties: STATE v. WALLER
• Court: Missouri Supreme Court

259 S.W. 445

STATE v. WALLER

No. 25235

Supreme Court of Missouri, Second Division

March 4, 1924

Page & Barrett, of Springfield, and Curtis & Vandeventer, of Hartville, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

OPINION

HIGBEE, C.

The defendant was charged on information with feloniously shooting and wounding James Skaggs, with intent to kill, tried to a jury, found guilty, and his punishment assessed at a fine of $ 100, from which he appealed.

The appellant complains of numerous errors on the trial. We find no material error in the case, except the giving of instruction 9 for the state, which reads, in part:

'If you find and believe from the evidence that any witness has willfully sworn falsely to any material fact in the controversy, you should reject any or all of such witness' testimony.'

This instruction is mandatory, and invades the province of the jury. The evidence was conflicting.

'There is no middle ground. The contradiction is clear and sharp, and not such as witnesses might honestly differ about.' State v. Martin, 124 Mo. 514, 522 IV, 28 S.W. 12, 14; State v. Barnes (Mo. Sup.) 204 S.W. 264(6).

In such case the jury may reject the whole or any part of the testimony of a witness, if, upon consideration of all the evidence, they believe he has willfully sworn falsely as to any material fact in issue. If the word 'may' had been used instead of 'should,' the instruction would not be subject to criticism.

The judgment is reversed, and the cause remanded.

RAILEY, C., concurs.

Per Curiam. The foregoing opinion of HIGBEE, C., is hereby adopted as the opinion of the court.

All concur.