White v. Lowenberg

Missouri Court of Appeals

White v. Lowenberg

55 Mo. App. 69, 1893 Mo. App. LEXIS 254

CourtMissouri Court of Appeals

DecidedNovember 20, 1893

StatusPublished

Cited by5 cases

This text of 55 Mo. App. 69 (White v. Lowenberg) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

White v. Lowenberg, 55 Mo. App. 69, 1893 Mo. App. LEXIS 254 (Mo. Ct. App. 1893).

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Opinion

Ellison, J.

This action is on an account for work and labor in building a wall. Plaintiff recovered, and defendant appealed. There was contradictory testimony at the trial — each party having evidence tending to support their respective contentions. The court gave, at the instance of plaintiff, the following instruction to the jury: “The court instructs the jury that they are the sole judges of the weight of the evidence and the credibility of the witnesses, and if they believe that any witness has willfully sworn falsely, they are at liberty to disregard the whole of his testimony.”

It will be noticed that this instruction fails to limit the false testimony to any substantial or material fact in the case. It authorizes the jury to disregard the entire testimony of any witness whom they may believe has sworn falsely as to any statement he may have [71]*71made, whether it may be some matter properly in the case and affecting its decision, or some matter which may have been inadvertently or improperly drawn out.

Instructions of this nature are not looked upon with much favor by the courts (Iron Mountain Bank v. Murdock, 62 Mo. 74), yet their propriety or necessity in the given case is left largely with the discretion of the trial court. White v. Maxcy, 64 Mo. 559; State v. Hickam, 95 Mo. 332. But, when asked in cases where the court deems it proper to give them at all, they should not be drawn so as to suggest to the jury that they might disregard the entire testimony of a witness who had sworn falsely as to some trivial matter, possibly disconnected from the case. The instruction as given in this case is so wide a departure from the form in which such instructions have been approved that we feel constrained to disapprove it.

Of the remaining objections it is sufficient to say, after a careful examination, that we think there was evidence sufficient to support the verdict. Nor do we approve of the view presented by the appellant as to the other instructions. The court’s action as to them we believe to be correct.

For the error mentioned, the judgment will be reversed and the cause remanded.

All concur.

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Ellison, J.

This action is on an account for work and labor in building a wall. Plaintiff recovered, and defendant appealed. There was contradictory testimony at the trial — each party having evidence tending to support their respective contentions. The court gave, at the instance of plaintiff, the following instruction to the jury: “The court instructs the jury that they are the sole judges of the weight of the evidence and the credibility of the witnesses, and if they believe that any witness has willfully sworn falsely, they are at liberty to disregard the whole of his testimony.”

It will be noticed that this instruction fails to limit the false testimony to any substantial or material fact in the case. It authorizes the jury to disregard the entire testimony of any witness whom they may believe has sworn falsely as to any statement he may have [71]*71made, whether it may be some matter properly in the case and affecting its decision, or some matter which may have been inadvertently or improperly drawn out.

Instructions of this nature are not looked upon with much favor by the courts (Iron Mountain Bank v. Murdock, 62 Mo. 74), yet their propriety or necessity in the given case is left largely with the discretion of the trial court. White v. Maxcy, 64 Mo. 559; State v. Hickam, 95 Mo. 332. But, when asked in cases where the court deems it proper to give them at all, they should not be drawn so as to suggest to the jury that they might disregard the entire testimony of a witness who had sworn falsely as to some trivial matter, possibly disconnected from the case. The instruction as given in this case is so wide a departure from the form in which such instructions have been approved that we feel constrained to disapprove it.

Of the remaining objections it is sufficient to say, after a careful examination, that we think there was evidence sufficient to support the verdict. Nor do we approve of the view presented by the appellant as to the other instructions. The court’s action as to them we believe to be correct.

For the error mentioned, the judgment will be reversed and the cause remanded.

All concur.

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55 Mo. App. 69, 1893 Mo. App. LEXIS 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-lowenberg-moctapp-1893.

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