MR. JUSTICE HUNT
delivered the opinion of the court.
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 recoverd 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, m 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 [75]*75be 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 seem 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 fact 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 do. 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. [76]*76Reasoning 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 gropings for propabilities, 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 bad 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 willfully sworn falsely, and is not corroborated by other evidence. No such principle can find favor where the jury are the exclusive judges of the credibility of a witness, and where they are authorized to ignore his testimony, if willfully false, and not corroborated. It may be that a jury, after full consideration of all a witnéss has testified to, will believe he has perjured himself, yet it may not have been readily observed at all on the trial that the witness willfully swore falsely. Now, under such conditions, the jury have as clear a right to discard his testimony as they would have had if it had been palpable that the witness was willfully falsifying; for the test necessarily is: has the witness willfully sworn falsely as to any material matter? and this is to be ascertained by the jury as a fact, deducible from other [77]*77facts or circumstances connected with the trial and before them for consideration. But, in sifting and weighing the evidence, if the fact is found, whether it has manifested itself palpably, or whether it has been arrived at by processes of reasoning upon other facts or circumstances, is absolutely immaterial in its effect upon the power of the j ury to discard the testimony.
We therefore disapprove of the instruction from the two standpoints discussed. It is essentially erroneous, and the text of Mr. Sackett (page 35), which gives it as the law, finds no support in any language used by the court in Gottlieb v. Hartman, 3 Colo. 53, which is cited as authority for its doctrine. It follows that the action of the court below in granting a new trial must be affirmed.
Another ground for granting a new trial was the refusal of the court to give the following instruction requested by defendant: “You are further instructed that a witness who testifies falsely in one part of his testimony is to be distrusted in other parts of his testimony.” The instruction offered is substantially the language of Subdivision 3 of Section 3390 of the Code of Civil Procedure, which provides that the jury are to be instructed on all proper occasions “that a witness false in one part of his testimony is to be distrusted in others.” Presumably the case was one where the court should have given the instruction requested, or the substance of it, by way of caution to the jury upon effect of evidence. And we can readily understand the aid furnished to a jury by declaring to them the principle meant to be enunciated by the statute, that a witness who has willfully testified falsely as to any material matter must be distrusted as to other parts of his testimony. The statute is not applicable, however, to unintentional errors, or evidence given upon immaterial matters, and without intent to deceive.
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MR. JUSTICE HUNT
delivered the opinion of the court.
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 recoverd 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, m 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 [75]*75be 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 seem 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 fact 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 do. 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. [76]*76Reasoning 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 gropings for propabilities, 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 bad 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 willfully sworn falsely, and is not corroborated by other evidence. No such principle can find favor where the jury are the exclusive judges of the credibility of a witness, and where they are authorized to ignore his testimony, if willfully false, and not corroborated. It may be that a jury, after full consideration of all a witnéss has testified to, will believe he has perjured himself, yet it may not have been readily observed at all on the trial that the witness willfully swore falsely. Now, under such conditions, the jury have as clear a right to discard his testimony as they would have had if it had been palpable that the witness was willfully falsifying; for the test necessarily is: has the witness willfully sworn falsely as to any material matter? and this is to be ascertained by the jury as a fact, deducible from other [77]*77facts or circumstances connected with the trial and before them for consideration. But, in sifting and weighing the evidence, if the fact is found, whether it has manifested itself palpably, or whether it has been arrived at by processes of reasoning upon other facts or circumstances, is absolutely immaterial in its effect upon the power of the j ury to discard the testimony.
We therefore disapprove of the instruction from the two standpoints discussed. It is essentially erroneous, and the text of Mr. Sackett (page 35), which gives it as the law, finds no support in any language used by the court in Gottlieb v. Hartman, 3 Colo. 53, which is cited as authority for its doctrine. It follows that the action of the court below in granting a new trial must be affirmed.
Another ground for granting a new trial was the refusal of the court to give the following instruction requested by defendant: “You are further instructed that a witness who testifies falsely in one part of his testimony is to be distrusted in other parts of his testimony.” The instruction offered is substantially the language of Subdivision 3 of Section 3390 of the Code of Civil Procedure, which provides that the jury are to be instructed on all proper occasions “that a witness false in one part of his testimony is to be distrusted in others.” Presumably the case was one where the court should have given the instruction requested, or the substance of it, by way of caution to the jury upon effect of evidence. And we can readily understand the aid furnished to a jury by declaring to them the principle meant to be enunciated by the statute, that a witness who has willfully testified falsely as to any material matter must be distrusted as to other parts of his testimony. The statute is not applicable, however, to unintentional errors, or evidence given upon immaterial matters, and without intent to deceive. Its sense is to require the jury to distrust only a witness who willfully swears falsely as to material matters; and we are of opinion that it ought always to be given with the words “willfully” and “material” expressed as qualifications of the rule it declares.
The statute (Sec. 3390, supra) came to us from California (Code Civ. Proc. Cal. Se.c. 2061), where it has been inter[78]*78preted as applicable only to a witness who is willfully false in a material manner (People v. Hicks, 53 Cal. 354; People v. Soto, 59 Cal. 367); and, while it has been held in that state that the word “false” is not the equivalent of “mistake,” and that the word “willfully” does not change the effect of the instruction as offered (People v. Sprague, 53 Cal. 491; People v. Righetti, 66 Cal. 184, 4 Pac. 1063, 1185; White v. Disher, 67 Cal. 402, 7 Pac. 826), nevertheless we are satisfied that the meaning should be made perfectly clear by avoiding the opportunity for misunderstanding that may reasonably exist by adopting the construction of the supreme court of California announced in the cases heretofore cited and followed in State v. Kyle, 14 Wash. 550, 45 Pac. 147, holding that the qualifying words need not be expressed.
As a statute affecting the province of the jury in weighing evidence, it requires them to view with distrust the testimony of a witness who willfully swears falsely as to a material matter. They must distrust such a witness, and, under their general power of passing upon the credibility to be attached to each witness, they may discard such testimony entirely, except in so far as it is corroborated by other credible evidence. (People v. Durrant, 116 Cal. 179, 48 Pac. 75.)
3. It is well settled that, to maintain an action in claim and delivery, plaintiff must plead and prove his right to the immediate possession of the property at the time of the commencement of his suit. (Bach, Cory & Co. v. Montana Lumber & Produce Co., 15 Mont. 345, 39 Pac. 291; People's Saving Bank v. Jones, 114 Cal. 422, 46 Pac. 278; Olson v. Thompson, 6 Okla. 74, 48 Pac. 184; Fredericks v. Tracy, 98 Cal. 658, 33 Pac. 750; Cobbey on Replevin, Sec. 94.) Allegations of these essential facts may be by stating the particular facts which entitle plaintiff to immediate possession; but they must be made. ( Visher v. Smith, 91 Cal. 260, 27 Pac. 650.) Plaintiff’s complaint upon his first cause of action was deficient in these respects, and he should amend before a new trial. His second cause of action was sufficiently well stated.
The order granting a new trial must be affirmed.
Affirmed.