White v. Disher

Searls, C. Action to recover damages on breach of contract. Plaintiff had verdict and judgment for $714 and costs. Defendant moved for a new trial, which was denied, and the appeal is from final judgment and order overruling motion for new trial.

We have examined the several errors assigned by appellant, and conclude that with a single exception they are not supported by law.

The exception referred to is as follows:—

At the trial defendant asked the court to instruct the jury in these words: —

“A witness wilfully false in one part of his testimony is to be distrusted in his other testimony.” The instruction was modified by the court by striking out the words “is to,” and inserting in lieu thereof the word “ may,” so that the instruction as given reads: “ A witness wilfully false in one part of his testimony may be distrusted in his other testimony.”

To which modification of the instruction defendant excepted, and the ruling is assigned as error.

[403]Section 2061 of the Code of Civil Procedure, subdivision 3, provides: “ That a witness false in one part of his testimony is to be distrusted in others.”

The rule as formulated in the Code is substantially the same as that laid down by law-writers and followed by the courts prior to the adoption of our Codes.

In People v. Sprague, 53 Cal. 494, the court say: “ The maxim fcdsus in uno, falsus in omnibus, is not to be construed as authorizing a court to charge that if a witness perjures himself in respect to one or more particulars, the jury must reject all his testimony. (People v. Strong, 30 Cal. 156.)

“The rule is that the jury may reject the whole of the testimony of a witness who has wilfully sworn falsely as to a material point, that is to say, the jury being convinced that a witness has stated what was untrue,. not as the result of mistake, or inadvertence, but wilfully and with the design to deceive, must treat all his testimony with distrust and suspicion, and reject all, unless they shall be convinced, notwithstanding the base character of the witness, that he has in other particulars sworn to the truth.

“The third subdivision of section 2,061 of the Code of Civil Procedure is but declaratory of the rule above considered, and by requiring a jury to distrust, necessarily authorizes them to reject all the testimony of such a witness in a proper case.”