Keef v. State

60 So. 963, 7 Ala. App. 15, 1913 Ala. App. LEXIS 6

Opinion

WALKER, P. J.

The defendant was examined as a witness in his oivn behalf. In reference to his testimony the court, in written charge 3 given at the request of the solicitor, instructed the jury as follows: “If the jury believes that the defendant has testified falsely in a material particular, then the jury may disregard the defendant’s testimony entirely.” Under this instruction, all that was required to entitle the jury entirely to disregard the testimony of the defendant ivas a belief by them that it ivas false in any material particular, though such falsity ivas recognized by them to he a result of a mere error in observation or of a failure to recall a material detail of the matter deposed about, and though the misstatement was not willfully or corruptly false, and was not such a one as to create in the minds of the jury a belief or conviction that the testi-. mony of the witness as to other material facts was unworthy of credit. Under such an instruction the jury could capriciously disregard material testimony in the case, of the truth of which they were fully convinced. The law does not recognize the existence of such a right in the triers of fact to put out of view material credible testimony adduced for their consideration. The charge was erroneous, and was distinctly prejudicial to the rights of the defendant. — Prater v. State, 107 Ala. 26, 18 South. 238; Gillespie v. Hester, 160 Ala. 444, 49 South. 580.

Reversed and remanded.