Hinton v. State

91 So. 397, 129 Miss. 226

• Court: Mississippi Supreme Court
• Decided: March 15, 1922
• Docket: No. 22217
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

The appellant was .convicted .of assault and battery with intent to kill and murder. The only error assigned is the granting by the court below of the following instruction : “The court charges the jury for the state that they are the sole judges of the weight and credibility of all the witnesses, and that, if they believe that any witness wil-fully testified falsely to any material fact at issue, then it is within your pi*ovince to disbelieve all the evidence of such witness or witnesses unless they are corroborated by other credible witnesses or evidence.”

The objections urged to this instruction are: First, it does not require the jury’s belief to arise from the evidence; and, second, it does not require the jury to believe that the false swearing was corruptly lone.

The first objection cannot be availed of by the appellant for the reason that he obtained a similar instruction in which the jury were charged “that if they believe that any witness has corruptly testified falsely,” etc. Railway Co. v. Williams, 87 Miss. 344, 39 So. 489; Railroad Co. v. Baswell, 85 Miss. 313, 38 So. 43; Wilson v. Zook, 69 Miss. 694, 13 So. 351; 4 C. J. 709.

It was said in several of the cases invoked by the appellant that for the falsus in uno, falsus in omnibus, maxim to be invoked, the testimony must have been willfully and corruptly given,,- and in one that it must have been willfully, knowingly, and corruptly given. But both 'of these phrases simply mean that the falsity of the testimony must have been known to the witness when it was given, for, “if the person swears to what he knows to he false, it is necessarily willful, and, if willful, it is necessarily corrupt.” Brown v. State, 57 Miss. 424. It is the consciousness of the falsity of part of his testimony when giving it that justifies the inference that the remainder of the witness’ testimony may also be false. Railroad Co. v. Hedrick, 62 Miss. 28; 2 Wigmore on Evidence, section 1018. Willfully, includes knowingly (3 Bouv. Law Dict. 3454; Turner v. State, 95 Miss. 879, 50 So. 629), and false evidence knowingly given must necessarily be corrupt. Consequently, to charge the jury that the false testimony must have been willfully given necessarily implies that it must have been, knowingly and corruptly given.

The writer has not overlooked his dissent in Turner v. State, 95 Miss. 879, 50 So. 629, but is now of the opinion tlxat the case was correctly decided if the maxim is still to be permitted to he invoked at all.

Affirmed.