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A treatise on the law of instructions to juries in civil and ..., Volume 1 online

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The court may,** and should,** refuse to submit immaterial is-
sues to the jury, or issues raised by counts of the pleadings which
have been dismissed, stricken out, or otherwise disposed of by
rulings of the court during the progress of the trial.*® The court
should eliminate issues which have been abandoned,*^ and may
properly refuse instructions on such issues.**

« 7 Bradford v. City of St Joseph
(Mo. App.) 214 S. W. 281.

28 m. Wettrick v. Martin, 164 111.
App. 273; Stern v. Bradner Smith &
Co., 127 111. App. 640, judgment af-
firmed 80 N. E. 807, 225 111. 430, 116
Am. St Rep. 151.

Kan. McKnight t. Strasburger
Bldg. Co., 150 P. 542, 96 Kan. 118.

K7. Ross T. Commonwealth, 59 S.
W. 28, 24 Ky. Law Rep. 1621.

Minn. Matz v. Martinson, 149 N.
W. 370, 127 Minn. 262, L. R. A. 1915B,

N. Y. Hesse v. Gude Bros.-Kieffer
Co. (Sup.) 170 N. T. S. 211.

WU. Gist V. Johnson-Carey Co.,
147 N. W. 1079, 158 Wis. 188, Ann.
Cas. 1916E, 460.

2»Cowie V. Kinser, 138 111. App.
143, Judgment aflBrmed Kinser v.
Cowie, 85 N. E. 623. 235 111. 383, 126
Am. St. Rep. 221 ; Penney v. Johnston,
142 111. App. 634; Scherrer v. City
of Seattie, 100 P. 144, 52 Wash. 4.

80 Hahn v. Lumpa, 138 N. W. 492,
158 Iowa, 560; Wells v. Kavanagh,
74 Iowa, 372, 37 N. W. 780; Fry v.
Leslie, 87 Va. 269, 12 S. E. 671.

See, also, supra, g 126.

81 Heller v. Chicago & G. T. Ry. Co.,

109 Mich. 53, 66 N. W. 667. 63 Am.
St. Rep. 541.

See, also, supra, { 126.

83 Ga. Seaboard Air line Ry. v.
Gnann & De Loach, 82 S. E. 1066, 142
Ga. 381; Crawford v. Georgia Pac.
Ry. Co., 86 Ga. 5, 12 S. E. 176.

m. Kellogg V. Boyden, 126 111. 378,
18 N. B. 770.

Ind. Crum v. Yundt, 12 Ind. App.
308, 40 N. E. 79.

Iowa. Struebing v. Stevenson, 105
N. W. 341, 129 Iowa, 25.

Mo. Leabo v. Goode, 67 Mo. 126.

Tex. Wright v. Hardie (Civ. App.)
30 S. W. 675.

Issues not deemed abamdoned
within rule. Where, In an action
for agent's compensation, the answer,
independent of a counterclaim, alleg-
ed that plaintiff wrongfully procured
the issuance to himself of a large
amount of the stock of his employer;
that he made false entries in the books
of the company and appropriated its
moneys to his own use, the fact that
during the trial defendant dismissed
a counterclaim for damages based on
the same facts did not Justify the
court in refusing to submit to the
Jury evidence sustaining the defense
of unfaithfulness. Steele v. Crabtree,
106 N. W. 753, 130 Iowa, 813.

Digitized by





A. In Gbnebal

f 146. Credibility in general.

147. Impeachment of witnesses in general.

148. Refusal of instmctionB because of other instructions given.

149. Sufficiency of evidence to, sustain instructions on credibility of wit-


150. Right or duty of Jury to believe witnesses.

151. Right or du^ of Jury to dlsbelieTe witnesses.

152. Duty of Jury not to act arbitrarily.

B. Pabtioulab Mattebs to bb Considbbsd in Pabsino on Cbedibilitt or


163. Necessity, propriety, and sufficiency In general.

154. Character and conduct of witness.

155. Youth of witness.

156. Corroboration of witness against whom impeaching testimony has

been given.

O. Tbotimont Not Givbn in Open Coubt ob Not Given undbb Sanction

or Oath

157. Absent witnesses.
15S. Dying declarations.

D. Intebest ob Bias or Witness

159. Right of Jury to consider Interest or bias of witness and effect ^f such


160. Complaining witness in criminal prosecution.

161. Police officers, detectives, and Informers.

162. Wife or relatives of accused.

163. C indictee U defendant In criminal case.

E. Cbedibilitt or Pabtt Testifying as Witness

164. Singling, out party for comment.

165. Ignoring Interest of party.

F. Cbedibilitt of Testimont of Accused

166. Necessity of instructions.

167. Propriety and sufficiency of instructions.

168. Reference to interest of the defendant in the event of the trial.

169. Effect of impeaching testimony.

170. Effect of false testimony.

171. Unsworn statement of defendant.

G. Testimont of Aooompijoes

172. Instructions as to who are accomplices.

173. Necessity and propriety of instructions on rellaj>ility of accomplice


174. Necessity and sufficiency of evidence of complicity In crime to author-

ize or require instructions on accomplice testimony.

Digitized by



175. Sufficiency of Instructions on right to convict upon accomplice testi-.


176. Sufficiency of instructions on corroboration of accomplice.

177. Corroboration of one accomplice by another.

H. Instructions on ErFEOx of False Testihont

175. Necessity and propriety of instructions.

179. Sufficiency of instructions.

180. Ck>rroboration of part of testimony not shown to be false.

I. Effect of makino Contradictory Statements

181. Necessity of instructions.

182. Propriety and sufficiency of instructions.

J. Singling out Particular Witnessos or Classes of Witnesses for Com-
ment AS to Credibilitt

183. Rule that such iiustructions are improper.

184. Rule that sucn instructions may be given.
Instructions as invading province of jury, see ante, }} 6-27.

A. In Generai,

§ 146. Credibility in general

As we have seen in a preceding chapter, the credibility of wit-
nesses is almost invariably for the jury, but the court may lay
down general rules for testing such credibility, or as to the right to
believe or disbelieve a witness; the giving of such instructions
resting largely in the discretion of the trial court.^ Where there is
a conflict in the evidence upon a material point,* which is not rea-
sonably attributable to mistake, inadvertence, or lapse of mem-
ory,* it will be proper to give such an instruction. In some juris-
dictions, on request, such an instruction should be given.* The
general rule is that a party desiring instructions as to the credi-
bility or impeachment of witnesses should request them.'

1 Cullum V. Colwell, 83 A. 695, 85 ^ Grant v. State, 50 S. E. 946. 122
Conn. 459; People v. Dumas, 125 N, Ga. 740.

W. 766, 161 Mich. 45 ; Dawson v. e Ga. WHUams v. State (App.) 1^2

Flintom, 190 S. W. 972, 195 Mo. App. S. B. 875; Carson v. State, 97 S. E.

75 ; White v. Lowenberg, 55 Mo. App. 202, 22 Ga. App. 743 ; Brown v. State,

69. 97 S. E. 69, 148 Ga. 509; Gibson v.

2 State V. Parmenter, 213 S. W. 439, State. 03 S. E. 48, 20 Ga. App. 73;
278 Mo. 532; Deubler v. United Rys. Watkins v. State, 91 S. E. 284, 19 Ga..
Co. of St. Louis, 187 S. W. 813, 195 App. 234 ; Seaboard Air Line Ry. v.
Mo. App. 658. Barrow, 89 S. E. 383, 18 Ga. App. 261; '

« Robert v. Rialto Bldg. Co., 199 S. Winder v. State, 88 S. E. 1003, 18 Ga.

W. 428. 198 Mo. App. 121 ; McDonald App. 67 ; Wyatt v. State, 88 S. E.

V. Redemeyer, 198 S, W. 483, 197 Mo. 718, 18 Ga. App. 29; GUes v. VoUes.

App. 630; Weller v. Plapao Labora- 88 S. E. 207, 144 Ga. 853; White v.

tories Incorporation, 191 S. W. 1056, State, 81 S. B. 440, 141 Ga. 526; Cen-

197 Mo. App. 47. tral of Georgia Ry. Co. v. McGuire, 73

Digitized by





§ 147. Impeachment of witnesses in general

It is proper for the court to charge as to the effect of evidence
introduced to impeach a witness,® and that it is for the jury to say
how far the impeachment of any witness is successful,' and al-
though, as a general rule, it is not incumbent on a trial judge, in
the absence of a request therefor, to give an instruction as to the
impeachment of witnesses,* a general charge laying down the rules
for determining the credibility of witnesses being sufficient,^ the
circumstances may be such as to make it error to fail to instruct
upon the impeachment of witnesses, as well as upon the general
subject of their credibility.^*^

Where there is no evidence tending to impeach any witness in
any of the modes prescribed by law, a failure to charge on the

S. B. 702, 10 Ga. App. 483; ChUds v.
Ponder, 43 S. E. 986, 117 Ga. 553;
Freeman v. Coleman, 88 Ga. 421, 14
S. E. 551 ; Cole v. Byrd, 83 Ga. 207,
9 S. B. 613.

Idalio. State v. Knudtson, 83 P.
226, 11 Idaho, 524.

m. Johnson v. People, 140 111. 350,
29 N. B. 895.

Ind. T. Parker v. United States,
43 S. W. 858, 1 Ind. T. 592.

Iowa. Halley v. Tiehenor, 94 N.
W. 472, 120 Iowa, 164.

Micli. Bartholomew v. Walsh, 157
N. W. 575, 191 Mich. 252.

Mo. State V. Thurman, 98 S. W.
819, 121 Mo. App. 374.

Neb. Edwards v. State, 95 N. W.
1038, 69 Neb. 386, 5 Ann. Cas. 312;
Kerr v. State, 88 N. W. 240, 63 Neb.

N. J. State V. Girone, 103 A. 803,
91 N. J. Law, 498.

Va. Shenandoah Valley Loan &
Trust Co. V. Murray, 91 S. E. 740, 120
Va. 563.

Omiision of word ''willfully."
A charge that, if the jury believe that
plaintiff swore falsely in any one
material fact, they might disregard
his entire testimony, is not erroneous
because it omits the word "willfully,"
where no request to supply the omis-
sion is made. Lindheim v. Duys (Su-
per. N. Y.) 11 Misc. Rep. 16, 31 N.
Y. S. 870.

« Florence v. State, 134 S. W. 689,
61 Tex. Cr. R. 238.

7 Pike V. State, 49 S. E. 680. 121
Ga. 604.

8 Ga. Western & A. R. Co. v. Holt,
95 S. E. 758, 22 Ga. App. 187; Mc-
Donald V. State, 94 S. E. 262, 21 Ga.
App. 125 ; Garrett v. State, 93 S. E.
232, 20 Ga. App. 749; Seaboard Air
Line Ry. v. Barrow, 89 S. B. 383, 18
Ga. App. 261 ; Kelly v. State, 88 S. E.
822, 145 Ga. 210; Giles v. VoUes, 88 S.
E. 207, 144 Ga. 853 ; Fite v. State, 84
S. E. 485, 16 Ga. App. 22 ; Smith v.
State, 78 S. E. 685, 13 Ga. App. 32;
McCrary v. State, 74 S. E. 536, 137
Ga. 784 ; Craig v. State, 70 S. E. 974,
9 Ga. App. 233 ; Jackson v. State, 70
S. E. 245, 135 Ga. 6S4; Perdue v.
State, 60 S. E. lai, 135 Ga."277; Hun-
ter V. State, 65 S. E. 154, 133 Ga. 78;
Rouse V. State, 58 S. E. 416, 2 Ga.
App. 184; Caesar v. State, 57 S. E.
66, 127 Ga. 710; Hatcher v. State,
42 S. E. 1018, 116 Ga. 617; Louisville
& N. R. Co. V. Thompson, 39 S. E.
483, 113 Ga. 983.

Iowa. Connors v. Chingren, 82 N.
W. 934, 111 Iowa, 437.

Mont. State v. WiUette, 127 P.
1013, 46 Mont. 326.

Tex. American Telegraph & Tele-
phone Co. V. Kersh, 66 S. W. 74, 27
Tex. Civ. App. 127 ; Harrell v. State,
45 S. W. 581, 39 Tex. Cr. R. 204;
Thurmond v. State, 27 Tex. App. 347,
11 S. W. 451.

oGivens v. State, 35 Tex. Cr. R.
563, 34 S. W. 626.

10 Smith V. State, 171 P. 341, 14
Okl. Cr. 348 ; Wolfe v. State, 25 Tex.
App. 698, 9 S. W. 44.

Digitized by


§ 147



law relating to the impeachment of witnesses is not error,*^ and
a mere direct contradiction of one witness by another will not
ordinarily call for such an instruction.^ Where the court under-
takes to state the methods by which a witness may be impeached,
it should state all of such methods, so far as authorized by the
evidence,^* but failure to do so will not require a new trial, in
the absence of a request to charge as to the method of impeach-
ment omitted.^*

Whenever it is necessary to charge in regard to the effect of
impeaching testimony, the jury should be tofd that such testi-
mony is to be used for the purpose of affecting the credibility of
the witnesses whose evidence is sought to be impeached." An
instruction that such testimony is to be considered for the sole
purpose of enabling the jury to judge of the weight to be given
to the testimony of the witness impeached is too restrictive.**

§ 148. Refusal of instructions because of other instructions given

Instructions with respect to the credibility of witnesses may
properly be refused, where other instructions given sufficiently
cover the ground.*' Thus, where the court has instructed that

n Freeman v. State, 37 S. E. 172,
112 Ga. 48.

12 Kipper v. State, 7X S. W. 611, 45
Tex. Cr. R. 377.

18 Webl) V. State, 79 S. E. 1126, 140
Ga. 779 ; Brand v. Bagwell, 66 S. B.
935, 133 Ga. 750.

EvidenQe impeaoliins witness In
more tlian one 'way* An instruction
on the subject of impeaching witness-
es, which refers only to one method
of impeachment, is erroneous, when
the evidence tends to show impeach-
ment both by contradictory statement
and by general character. Southern
Cotton on Co. V. Skipper, 54 S. B.
110, 125 Ga. 368.

Confining charse to methods of
impeaohn&ent sliown hf tlie otI-
denoe. Where the only method by
which a witness was sought to be im-
peached was by disproving the facts
testified to by him and by proof of
previous contradictory statements. It
was proper to confine the instructions
on the subject of impeachment of
witnesses to those two methods. Mc-
Girt v. State, 54 S. E. 171, 125 Ga.

1* Millen & S. W. R. Co. v. Allen, 61
S. E. 541, 130 Ga. 656.

18 Pratt v. State, 96 S. W. 8, 50
Tex. Cr. R. 227.

i« Elkins V. State, 87 S. W. 149. 48
Tex. Cr. R. 205; Dean r. State (Tex.
Civ. App.) 77 S. W. 803.

17 Upton V. Paxton, 72 Iowa, 295.
33 N. W. 773 ; Carroll v. Boston Ele-
vated Ry. Co., 86 N. E. 793, 200 Mass.

ninstrations of instraotions
properly refnsed because of other
instraotions giTon. Where the
jury have been instructed that their
verdict should be determined by the
evidence which would best satlsfj-
them of the truth of the claims made
py the respective parties, and in re-
gard to the effect of the testimony of
a witness who had made statements
out of court contradictory to those
made on the trial, it is not error to
refuse to charge further in regard to
the credibility of witnesses. Guther-
less V. Ripley, 98 Iowa, 290, 67 N. W.

Instraotions on mental eapaeity.
Where the court charged the jury to
consider the mental capacity of plain-
tiff, and, if they should find him to
be of a weak or unsound mind at
time of testifying or shortly before.

Digitized by





the jury, in passing on the credibility of witnesses, may con-
sider all the facts shown by the evidence, it is not error to refuse
an instruction that they may consider particular facts bearing on
the credibility of a party.^^ This rule applies with regard to in-
structions as to the effect of the interest of a. witness/* and ordi-
narily, where the court has instructed in general terms that they
may consider the interest which any witness has in the result of
the suit, it need not instruct further as to the effect of the in-
terest of a party .**^ But, where the testimony of a party is largely
contradicted by other witnesses, the court cannot properly refuse
to instruct that he is an interested witness, and the jury are not
bound to accept his testimony as true, though he is uncontra-
dicted or unimpeached, because it has instructed that in weighing
his testimony the jury can consider his interest,*^ and a request-
ed charge that in determining the credibility of a party his in-
terest may be considered is not sufficiently contained in an in-
struction that, if any witness has knowingly testified falsely, his
entire testimony may be disregarded;*' nor is such request cov-
ered by a general instruction that the jury are the proper judges
of the credibility of witnesses and the weight to be given to the
testimony of each.**

The refusal of instructions as to the effect of the giving of false
testimony by a witness is proper, where other instructions have

they could consider tliat fftct, refusal
to charge that the Jury could reject
his testimony if they beUeved he was
then, or a short time before, of weak
or unsound mind or of deficient under-
standing, and that if they believed he
was laboring under a delusion that
the money was d^?osited by him in
defendant's vault, verdict should be
for defendant, was not error. Mayer
V. Brensinger, 54 N. B. 159, 180 lU.
110, 72 Am. St. Rep. 196. affirming
judgment 74 IlL App. 475.

Means of informatioii. Where
the court charged, on defendant's be-
half, that the jury, in determining the
credibility of the witnesses, may con-
sider their means of Information, it
was not error for the court to refuse
to charge that where witnesses were
otherwise equally credible, and their
testimony otherwise entitled to equal
weight, greater weight and credit
should be given to those whose means
of Information are superior. Christy

V. EUlott, 74 N. B. 1035, 216 lU. 31,
1 L. R. A. (N. SO 215, 108 Am. St.
Rep. 196, 3 Ann. Cas. 487.

18 Beasley v. Jefferson Bank, 89 S.
W. 1040, 114 Mo. App. 406.

10 Iowa. Allen v. Kirk, 81 Iowa,
658, 47 N. W. 906.

Kan. Allison v. Ahlers, 26 Kan.
682; Fanson v. Harris, 21 Kan. 734;
Central Branch Union Pac. R. Co. v.
Holcomb, Id. 533; Same v. Young,
Id., 532 ; Kansas Pac. Ry. Co. v. Kun-
kel. 17 Kan. 145.

20 Chicago City Ry. Co. v. Mager,
56 N. E. 1058. 185 HI. 336, affirming
judgment 85 111. App. 524 ; Strasser v.
Goldberg, 98 N. W. 554, 120 Wis. 621.

21 Becker v. Woarms, 76 N. Y. S.
438, 72 App. Div. 196.

22 Chicago & B. I. R. Co. v. Bur-
ridge. 71 N. E. &S8, 211 111. 9. revers-
ing judgment 107 111. App. 23. •

28 Denver City Tramway Co. v.
Norton (O. C. A. Colo.) 141 F. 599, 73
O. O. A. 1,

Digitized by





sufficiently presented the subject to the jury,** and a general in-
struction, applicable to all the witnesses, as to the effect of false
testimony, justifies the refusal of an instruction confined to the tes-
timony of a party,** and it is held that, where the court has charged
as to the effect of false testimony, it need not also charge as to the
effect of making contradictory statements.*^

§ 149. Sufficiency of evidence to sustain instructions on credi-
bility of witnesses
An instruction on matters to be considered in passing upon the
credibility of witnesses must be based upon the evidence in
the case.*' This rule applies with respect to instructions as to
the effect of the general bad character of a witness,*® or the ef-
fect of his good character,** or as to the effect of bias or preju-
dice resulting from the fact that a witness is employed by a

2* West Chicago St. R. Co. v. Lies-
erowltz, 64 "N. E. 718, 197 in. 607,
affirming Judgment 99 lU. App. 591;
Burger v. Omaha & C. B. St. Ry. Co.,
117 N. W. 35, 139 Iowa. 645, 130 Am.
St. Rep. 343; Bernstein v. Smith, 10
Kan. 60.

25 City of Spring Valley v. Gavin,
54 N. E. 1035, 182 111. 232, affirming
judgment 81 111. App. 456 ; Whltaker
V. Engle, 69 N. W. 493, 111 ISfich. 205.

20 Chicago City Ry. Co. v. Fenni-
more, 64 N. E. 985, 199 111. 9, affirm-
ing judgment 99 111. App. 174.

27 U. S. (C. C. A. Cal.) Diggs v.
United States, 220 F. 545, 136 C. C. A.
147, certiorari granted Caminetti v.
United States, 35 S. Ct. 939, 238 U.
S. 636, 59 L. Ed. 1500 and judgment
affirmed 37 S. Ct. 192, 242 U. S. 470,

61 L. Ed. 442, L. R. A. 1917F, 502,
Ann. Cas. 1917B, 1168.

Ala. Davis v. State, 66 So. 67, 188
Ala. 59; Conner v. State, 65 So. 309,
10 Ala. App. 206 ; Tennison v. State,

62 So. 780, 183 Ala. 1 ; Hicks v. State,
26 So. 337, 123 Ala. 15.

Cal. People v. Blunkall, 161 P.
997, 31 Cal. App. 778 ; People v. Mc-
Pherson, 91 P. 1008, 6 Cal. App. 266;
People V. Ward, 66 P. 372, 134 Cal.

Ga. Gilstrap v. Leith, 102 S. B.
169, 24 Ga. App. 720; Devereaux v.
State, 78 S. K. 849, 140 Ga. 225.

ni. Johnson v. People, 64 N. E.
286, 197 111. 48.

Ind. Colondro v. State, 125 N. E.
27, 188 Ind. 533.

Kan. State v. Covington, 160 P.
1009. 99 Kan. 151.

Micli. Bulen v. Granger, 63 Mich.
311, 29 N. W. 718.

Miss. Layton v. State, 56 Miss.

Mo. State v. O'Kelley, 137 S. W.
333, 156 Mo. App. 406.

N. Y. Lustig V. New York, L. E. &
W. R. Co., 65 Hun, 547, 20 N. Y. S.

Or. State v. Birchard, 59 P. 468,
35 Or. 484.

Wyo. Jenkins v. State, 134 P. 260,
22 Wyo. 34, rehearing denied 135 P.
749, 22 Wyo. 34.

28 Southern Ry. Co. v. O'Bryan, 45
S. E. 1000, 119 Ga. 147; City Bank of
Macon v. Kent, 57 Ga. 283.

Intesriiy or l&oi&esty of witness.
A charge that the jury may consider
the "integrity or honesty" of a wit-
ness in determining the weight to be
given to his testimony is proper, even
where there is no other proof thereof
than that furnished by the appear-
ance, deportment, and testimony of
the witness himself. Fisher v. State,
77 Ind. 42.

20 Helms v. State, 72 S. B. 246, 136
Ga. 799; Jenkins v. State, 58 S. E.
1063, 2 Ga. App. 626; Johnson v.
State, 58 S. E. 684, 2 Ga. App. 405.

Digitized by



party ,*• or as to the eflfect of making contradictory statements,'^
or as to the effect of the corroboration of an impeached witness.*^
To sustain a charge that the jury may consider any feeling which
a witness has towards a party, it is necessary that there. should be
direct evidence as to such feeling.*' Where the credibility of a
particular .witness is not assailed, it is proper to refuse an in-
struction permitting the jury to consider certain matters in deter-
mining his credibility,** or telling them what weight should be
accorded to the testimony of a discredited witness.*' But an
instruction that the jury will consider the character of the wit-
nesses and their conduct on the stand, etc., is x^ot objectionable
as not based on evidence, where there is evidence contradicting
the testimony of a witness,*^ and a charge that the jury are to
consider the testimony in the light of the characters of the wit-
nesses, and their opportunity of knowing the .facts as to which
they testified, is not reversible error, though there is no evidence
in the case as to the character of witnesses; for such charge is
no more likely to prejudice one party than another.*'

§ 150. Right or duty of jury to believe witnesses

Where it is not sought to impeach any witness by evidence in-
troduced for that purpose, it is not error to instruct that the law
presumes all witnesses honest until the contrary is shown,** and
in some jurisdictions, where the evidence given on behalf of .one
party tends to show that a witness for his adversary is guilty .of
perjury, it is error to refuse to instruct as to .the presumption that
such witness is innocent of such offense.*® It is proper to charge
that .the jury may believe a witness, although he has been im-

«o Chicago City Ry. Co. v. Rohe, «iNabors v. State, 25 So. 529, 120

118 lU. App. 322; West Chicago St Ala. 323: Cauley v. State, 92 Ala. 71.

R. Co. V. Raftery, 85 111. App. 319; 9 So. 456.

niinols Cent R. Co. v. Leggett, 69 82 Kelly v. State, 45 S. B. 413, 118

111. App. 347; St Louis, A. & T. H. Ga. 329; Plummer v. State, 36 S. E.

R. Co. V. Walker, 39 111. App. 388 ; St. 233. Ill Ga. 839.
Louis, A. & T. H. R. Co. v. Hugglns, ss Mitchell v. State, 34 S. B. 576,

20 ni. App. 639. 110 Ga. 272.

The mere fact that, in an motion 34 Schmidt v. First Nat Bank, 50 P.

against a railroad, the witnesses 733 iq colo. App. 261.
for defendant are mostly its em- „ Holly v. Flournoy, 54 Ala. 99.

ployes, does not warrant an instruc- •* Tir«„iii*^« « -o^^i^^ tat a xkf

tion aithorizing the jury, if they be- '' ^2 Mo 647 '

lieve that any witness testified under '*,1 r2f f^^' ; ' ^ , ^ ^
fear of losing the employment, or *' ^^^^*^^,2?^^^^*^^,P^- ^- ^^^^^^

with a desire of pleasing his employer, ^^' ^ ^*- ^» ^ S. E. 216.
to consider such fact in determining '* Georgia Talc Co. v. Cohutta Talc

the weight to be given his evidence. Co., 78 S. B. 905, 140 Ga. 245.
Wastl V. Montana Union Ry. Co., 17 «• Stevenson v. Gunning's Estate,

Mont 213, 42 P. 772. 64 Vt 601, 25 A. 697.

Digitized by


§ 150



peached, if he is corroborated by other witnesses,** and an in-
struction is erroneous which might lead the jury to think that
they .cannot consider evidence in corroboration of such a wit-
ness.*^ An instruction tellings the jury in effect that, while the
law permits the impeachment of a witness by proving his general
reputation for truth and veracity to be bad, yet if they believe
the witness, while on the stand, gave a truthful, candid, and honest
statement of the facts, they should give it such faith and credit
as in their opinion it is entitled to, is proper, and should be g^v-
en,** and it is proper to refuse an instruction that the jury may
discard altogether the testimony of a witness so impeached.** It
may not be improper in a criminal case, under some circumstanc-
es, to instruct that the jury cannot discard as false the testimony
of a certain witness for the state, if the jury find beyond a reason-

Online LibraryWest Publishing Company Henry Edward RandallA treatise on the law of instructions to juries in civil and ..., Volume 1 → online text (page 44 of 145)