PART II. CREDIBILITY. CHAPTER XII. ELEMENTARY PRINCIPLES. § 180. The question of credibility one for the jury. § 181 How far dependent on means of knowledge or recollection. § 182. Or on the character and conduct of the witness. § 183. Or his manner and appearance. § 184. Or his bias or interest. § 185. Or relationship to party calling him. § 186. Credibility of parties in civil actions. § 187. Of agents and servants. § 188. Of accomplices. § 189. Of spies and informers. § 190. Of defendants in criminal cases. § 191. Rules for weighing testimony. § 192. The maxim "falsus in uno falsus in omnibus." § 193. Positive and negative testimony. § 194. Conflicting testimony. § 195. When one witness is sufficient. § 180. The Question of Credibility one for the Jury. While it is the province of the court to pass upon the competency of witnesses, it is altogether for the jury, as exclusive judges of the facts, to say what degree of weight or credibility shall be given to their testimony, and it is reversible error for the court, in its instructions to the jury, to invade their province in this respect.2 Thus, where the court stopped the cross-examination of a witness, saying, in 1 Union Ry. &c. Co. v. Kallaher (III.), 2 N. E. Rep. 77; Nat. Bank v. Mills (N. Y.), 2 N. E. Rep. 27; Moore r. State, 68 Ala. 380; Moore v. Jones, 13 Ala. 296; Western &c. R. R. Co. r. Carlton, 28 Ga. 180; Bowers v. People, 74 Ill. 418; Stampofski v. Stiffens, 79 Ill. 303; Terry v. State, 13 Ind. 70; Harrison v. Brock, 1 Munf. (Va.) 22; Mechelke v. Bramer, the presence of the jury, "I have serious doubts whether that witness ought not to be recognized to answer for perjury," this was held error. The jury may base their estimate of a witness' credibility on immaterial as well as material facts,2 or judge of it from his manner; but they should not reject him arbitrarily. And the credibility of experts is as much within their province as that of any other witnesses.4 On the other hand, if the facts depend entirely upon the testimony of an uncorroborated witness, whose credibility is plainly impeached, the jury are morally bound to disregard his testimony.5 § 181. How far Dependent on Means of Knowledge or Recollection. It is true, as a general rule, that where an unimpeached witness swears to a fact as of his own knowledge, he must be deemed to possess competent means of information and knowledge of the fact, unless the contrary appears. But a witness who swears positively to facts not within his actual knowledge, e.g., the act of another not done in his presence, is not worthy of belief, in the absence of explanation as to how he acquired his positive knowledge of the facts sworn to; and the rule is the same where facts thus 7 sworn to were of no concern to the witness, and happened many years before, during his childhood.8 Swearing positively, from mere memory, after the lapse of several years, to such facts as dates, will seriously impair the credibility witness, while confusion and uncertainty in his testimony respecting dates will not have that effect in such cases.10 94 (where some restriction is placed upon the jury as to what witnesses to believe or disbelieve). See also Engmann v. Immel, 59 Wis. 249. 1 Kinner v. State, 45 Ind. 175. 2 Paton v. Stewart, 78 Ill. 481; Wallace v. State, 28 Ark. 531; Shellabarger . Nafus, 15 Kan. 547; Holloway v. Commonwealth, 11 Bush (Ky.) 344. 8 See City Bank of Macon v. Kent, of a 7 Slade v. Joseph, 5 Daly (NY) 187. But see also Willey v 8 Chandler . Hough, 7 La Ports Ann. 57 Ga. 253; Jones v. State, 48 Ga. 441; Parker v. Chambers, 24 Ga. 518. 163; Evans v. George, 80 III. 51; Smith v. Grimes. 43 Iowa, 357; Green v. Cochran, 43 Iowa, 545; Chester v. State, 1 Tex. App. 702; State v. Smallwood, 75 N. C. 104. 91. 9 Willett v. Fister, 18 Wall. (U.S.) 19 Black v. Black, 38 Ala. 11 1 But imperfect recollection of some things is not fatal to the credit of the witness as respects other things which he does remember.1 A witness, however, who pretends to forget circumstances collateral to his main story, which he must recollect if he has any memory at all, and in respect to which he would be open to contradiction if his testimony is untrue, is unworthy of belief.2 The duty of the jury is, to regard the capacity of the witness, whether he was able to see and understand the transaction, and also whether he was attentive or careless, prejudiced or dispassionate, or whether he has some sinister motive that might lead him to fabricate that which he did not see. The words he uses are to be taken in their ordinary meaning, and, when testifying to a fact necessarily within his knowledge, the evidence may go to the jury, notwithstanding he fails to affirm positively that the thing is or is not so.4 But a wide distinction should be made between witnesses who have an opportunity of knowing whether a fact has or has not occurred, and those who express a mere opinion based upon appearances or so-called results. The testimony of one of the former is worth that of a dozen of the latter.5 $182.(1) Character. If by reason of the bad character of a witness he is found unworthy of belief, his testimony may be disregarded, and the occupation of a witness may always be shown for the purpose of affecting his credibility. But after all, the jury are the judges, and even where it is shown that a witness has a bad reputation for truth, his evidence is not necessarily destroyed, but is to be considered under all the circumstances described in the evidence, and given such weight as the jury believe it entitled to.8 A belief in or on the Character and Conduct of the Witness. 1 Jackson v. McVey, 18 Johns. (N. Y.) 330; supra, § 10; State v. Cowan, 7 Ired. (N. C.) L. 239. 2 Gibbons v. Potter, 3 Stew. (N. J.) 204. People v. Bodine, 1 Edm. (N. Y.) Sel. Cas. 36. 4 Hammock v. McBride, 6 Ga. 178. Malin v. Malin, 1 Wend. (N. Y.) 623, 659. 6 Donohue v. Henry, 4 E. D. Smith, (N. Y.) 162; Kittering v. Parker, 8 Ind. 44. 7 United States r. Duff, 19 Blatchf. (U. S.) 9, where he was shown to be a lottery dealer. 8 State v. Miller, 53 Iowa, 209. And see Brown v. State, 18 Ohio St. 496; People v. Robles, 34 Cal. 591. spiritualism will not impair the credibility of a witness,1 nor will the fact that he is a clergyman increase it.2 Even conviction of crime is only a circumstance for the jury to consider, and to which they are to give what weight they see fit, in estimating the value of the witness' testimony.3 So also, in the case of an unchaste woman, her loose character affords no argument against her credibility as a witness, though, in some cases, her testimony should be received with caution, and may require corroboration.5 Even a common prostitute is competent, and may be reliable; whether she is so or not, is for the jury to judge, taking the habits of the woman and all the circumstances into consideration. (2) Conduct. Sometimes the conduct of a witness, at or previous to the trial, is an important factor in getting at the weight of his testimony. Thus, if a previous quarrel between him and a party be shown, this may be considered by the jury, as may also his complicity in the offence on trial, or his betrayal on the witness stand, of a secret so long kept undivulged as to almost render him a particeps criminis.9 So a person in charge of a canal-lock, who had been arrested for his careless conduct, was heard with suspicion when, upon a repetition of such conduct, he endeavored to cast the blame upon the person complaining.10 And a witness who refused to show his books of account already in court, after testifying by the aid of an alleged memorandum therefrom, was held thereby to subject his testimony to suspicion.11 An attempt by one witness to bribe another renders the former unworthy of belief without corroboration.12 The intoxicated condition of a witness at the time of his 1 Blaisdell v. Raymond, 9 Abb. (N. 363; Smithwick v. Evans, 24 Ga. Y.) Pr. 178 n. 461; Craft v. State, 3 Kan. 450; Sneed v. Creath, 1 Hawks (N. C.) Anonymous, 17 Abb. (N. Y.) Pr. 48. ̧ 7 Breen . People, 4 Park. (N. Y.) Cr. 380. 309. 3 People v. McLane, 60 Cal. 412. And see Commonwealth e. Gorham, 99 Mass. 420. 4 State v. Larkin, 11 Nev. 314; Jones v. State, 13 Tex. 168. 5 Frazer v. People, 54 Barb. (N. Y.) 306; Anonymous, 17 Abb. (N. Y.) l'r. 48. 6 State v. Shields, 45 Conn. 256. S. P., State v. Randolph, 24 Conn. 8 Moses v. State, 58 Ala. 117. See also Borton v. Borton, 48 Iowa, 697. 9 Miller v. Miller, 5 C. E. Gr. (N. J.) 216. 10 Sipple v. State, 1 N. E. Rep. 892. 11 Davie v. Jones, 68 Me. 393. See also McMaster v. Stewart, 11 La. Ann. 546. 12 Smith v. Newton, 84 Ill. 14. production to testify, undoubtedly affects, if it does not destroy his credibility, and it is for the jury to decide. whether he is in such a condition or not. But his having been in that state at the time of an occurrence in regard to which he testifies does not destroy his credibility. It undoubtedly impairs it; but if his evidence is corroborated, or his memory of the transaction appears to be distinct and clear, he is entitled to belief.2 If a witness, after partial examination, leaves the courtroom and wilfully remains away, for the purpose of avoiding further examination, his testimony already given should be suppressed, as unworthy of belief; but the fact that he left court after his examination, and that an attachment issued against him is returned "not found," does not, as a presumption of law, necessarily prejudice his credibility, as raising a presumption that he avoided further examination.* § 183. or his Manner and Appearance. -The manner and deportment of witnesses is very commonly an important indication of the existence or the want of sincerity. It is peculiarly the province of the jury to judge of these matters, and they should take into consideration the fact that to some witnesses this public appearance is a matter of indifference, while by many it is regarded with an apprehension productive of embarrassment and agitation, which to unskilful observers may appear the result of insincerity. If the witness testifies to facts incoherently and inconsistently, it has been held that this goes to his credibility, and that if his manner is very incoherent or inconsistent, the testimony should be considered with great caution.5 But to the writer's mind, the first duty of the jury in such a case would be to endeavor to discover the cause of the incoherence or inconsistency of the witness; i.e., whether it be caused by nervousness merely, or by favoritism to one side of the issue or intent to give false or misleading testimony. In any event the presiding judge should not give to the jury his own individual estimate of the appearance and manner of the witness.6 1 State v. McNinch, 12 So. Car. 89. 2 State v. Castello, 17 N. W. Rep. 605. Coughlin v. People, 18 Ill. 266. 5 Evans v. Lipscomb, 31 Ga. 71. 6 Crutchfield v. Richmond &c. R. R. 3 Flavell v. Flavell, 5 C. E. Gr. Co., 76 N. C. 320. (N. J.) 211. |