Owens v. State

63 Miss. 450

• Court: Mississippi Supreme Court
• Decided: April 15, 1886
• Status: Published

Opinion

Aknohd, J.,

delivered the opinion of the court.

The first instruction given for the State declared, in effect, that the jury, at pleasure and without regard to other considerations, might reject, in whole or in part, the testimony of any witness interested in the cause, or who had any motive to swear falsely, unless he was corroborated. As a legal proposition this is not true. Without corroboration the jury might accept the testimony of such witness as true, in whole or in part, if they deemed him worthy of credit, or from such interest and motive they might disbelieve him, in whole or in part, whether corroborated or not, if, in their judgment, he had on such account testified falsely; but there is no authority’of law for the declaration that the jury may arbitrarily-disregard the testimony of any witness unless he is corroborated. The jury are the judges of the credibility of witnesses, and they must determine from the facts and circumstances in evidence what estimate they will place on the testimony of witnesses, but in doing this they exercise, or should exercise, their judgment, and should not be guided by the mere dictates or impulses of the will.

The proposed evidence to show what the absent witness, Swartz, had sworn on the habeas corpus trial was not admissible. It is well established that the testimony of a deceased witness, given under oath in a judicial proceeding between the same parties on the same issue, is competent, both in civil and criminal cases, for either party, when the party against whom the testimony is offered had opportunity to cross-examine the witness on the former proceeding, 1 Greenlf. Ev., § 163; 1 Whart. Cr. L., § 667 ; Strickland v. Hudson, 55 Miss. 235; Commonwealth v. Richards, 18 Pick. 434; Summons v. State, 5 Ohio St. 325; Barnett v. State, 54 Ill. 325.

But whatever may be the rule in civil actions as to the admission -of evidence-to prove what was sworn by a witness on .a former trial between the same parties when such witness is alive but has removed from the State, or is beyond the jurisdiction of the court, such evidence is excluded on criminal trials. State v. Houser, 26 Mo. 431; Collins v. Commonwealth, 12 Bush. 271; People v. Newman, 5 Hill (N. Y.) 295; Finn v. Commonwealth, 5 Randolph 710; Bragy v. Commonwealth, 12 Gratt. 722; Gehauser v. North British Ins. Co., 7 Nev. 175.

Reversed.