Swan v. People of State

• Decision Date: 05 April 1881
• Citation: 98 Ill. 610,1881 WL 10521
• Parties: JAMES SWANv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

98 Ill. 610

1881 WL 10521 (Ill.)

JAMES SWAN

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa Apr. 5, 1881.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. MCKENZIE & CALKINS, for the plaintiff in error:

The fact that a witness may be contradicted upon a material point, is not enough to warrant the rejection of his evidence altogether, unless the jury believe that as to the matter in which he has been contradicted he has sworn falsely, and knew his evidence was false. Gulliher et al. v. The People, 82 Ill. 146; U. S. Express Co. v. Hutchins, 58 Id. 44; Pope v. Dodsen, Id. 365; Otmer v. The People, 76 Id. 149; Roach v. The People, 77 Id. 31.

Mr. JAMES MCCARTNEY, Attorney General, for the People, contended, at some length, that there was no error in the third instruction given for the People, and that it was distinguishable from the case of Gulliher v. The People, 82 Ill. 146, and, also, that the refused instructions of the defendant were properly refused.

Mr. J. J. TUNNICLIFFE, State's Attorney of Knox county, also for the People.

Mr. JUSTICE WALKER delivered the opinion of the Court:

An indictment was presented by the grand jury, at the October term, 1880, of the Knox circuit court, against plaintiff in error, charging him with having burglariously entered the carriage house of James McCutchen, and stealing therefrom two fly-nets, two halters, and a lap-robe or duster. He was tried at the same term, and a verdict of guilty was found by the jury, fixing the period of imprisonment in the penitentiary at one year. He entered a motion for a new trial, which was overruled, and he was sentenced to the penitentiary for the period fixed by the verdict. This writ of error is prosecuted to reverse that judgment.

We deem it unnecessary to consider more than the third instruction for the People, given by the court. It is this: “3. The jury are instructed, that if they shall believe any witness or witnesses sworn in this cause is or are unworthy of belief, because of his or her manner on the stand, or because of his or their contradictory statements, or because of his or their material points being contradicted by reliable evidence, or because of his or their having heretofore, under oath or otherwise, made statements on material points different from those made by him or them on this trial, then the jury may entirely reject the testimony of such witness or witnesses, except upon the matters wherein they are corroborated by other and reliable testimony.”

This instruction is not accurate, and in the conflicting evidence in the case may have misled the jury to the injury of plaintiff in error. In all cases, and especially such as this, where the evidence is...