SANBORN v. SANBORN

Bingham, Mitchell Fletcher, for the plaintiff. 1. The evidence given by the plaintiff being immaterial and irrelevant upon either question submitted to the jury, it was the court's duty to instruct them, in response to their inquiry, that the truthfulness of the plaintiff was not involved in either question submitted, because the testimony he gave was immaterial and not relevant upon either of the questions: his answer to their question should have been in the negative instead of in the affirmative.

2. If the court answered the jury's question in the affirmative, he should have instructed as requested by the plaintiff because they were not "at liberty to consider the truthfulness of the plaintiff" except as an element in weighing such evidence as the plaintiff gave; and the attention of the jury should have been directed to the nature of that evidence.

A jury trial, when properly conducted, is not only the most satisfactory method of determining ordinary questions of fact, but is the most efficient method. But a jury, to be an efficient agency in settling parties' rights, must have the efficient cooperation, instruction, and direction of an unbiased, honest, and intelligent judge, who understands his duty and will perform it.

To license a jury to exercise an arbitrary will instead of requiring them to exercise their judgment upon the evidence submitted to them, is to disregard the safeguards which distinguish a trial from a farce, and a verdict from a tragedy. It is the court's duty to instruct a jury upon the whole case, and not upon isolated parts. Thomp. Ch. Jur., s. 71. He should not charge as to the credibility of a particular witness. Ib., s. 36. In this case the court should not have singled out the plaintiff, nor permitted the jury to single him out, and apply a different rule to him and his testimony from that applicable to other witnesses. The instruction given had a tendency to mislead the jury into the belief that their privilege, with reference to the plaintiff and his testimony, was exceptional, — that the same right did not exist in weighing other witnesses evidence. Instructions which are misleading should be modified, explained, or refused. Snydacker v. Brosse, 51 Ill. 357; S.C., 99 Am. Dec. 551, 555. A charge or instruction may be correct as far as it goes, and be misleading because it fails to go far enough fully and intelligently to explain its meaning. Thomp. Ch. Jur., s. 67; Prof. Jur., s. 323. In Lavenburg v. Harper, 27 Miss. 299, it was held that an instruction which says, "If the jury believe that any of the witnesses corruptly swear falsely, they have the right to disregard his evidence entirely," there being an attempt to discredit one of the witnesses, was too broad, because it did not confine the jury to the testimony adduced on the trial, nor to the manner and demeanor of the witness while testifying, nor to any circumstance apparent upon the examination.

Counsel also cited and commented on Rollings v. Cate, 1 Hiesk. 97; Wilcox v. State, 3 Hiesk. 110; Hall v. Weare, 92 U.S. 728.

The plaintiff's request for instruction was specific, and there is no valid excuse for failure to give it. If there was a failure to request the instruction, a different question might arise. Johnson v. Gallivan, 52 N.H. 145; Moses v. Railroad. 32 N.H. 535. The credibility of a witness is a fact to be judged of like any other fact in the case. They must judge of it from evidence in the case. They cannot disregard the testimony of a witness without cause; they cannot do it from mere caprice. Robertson, v. Dodge, 28 Ill. 161 — S.C., 81 Am. Dec. 267. A jury is not warranted in rejecting evidence as being unworthy of belief on the ground that the witness has been contradicted, unless he was contradicted upon a material point in his testimony. Swan v. People, 98 Ill. 610 — cited in note to 81 Am. Dec. 270. The knowledge of facts obtained by jurors outside the trial should not be used, nor permitted to be used, in the jury's consideration of the issues presented to them. Before those facts can be considered, the jurors having knowledge of them should be examined like other witnesses. Schmidt v. Insurance Co., 1 Gray 535; Prof. Jur., s. 392.

Chase Streeter, for the defendants. The fact that the plaintiff had suborned a third person to testify falsely in support of his suit would have been a circumstance competent for the jury to consider as tending to discredit the plaintiff's case. Egan v. Bowker. 5 Allen 449; Moriarty v. Company, L. R. 5 Q. B. 314; State v. Staples, 47 N.H. 113, 114, 119. Why should not the jury be allowed to give at least equal consideration to the fact that the plaintiff testified falsely himself? The principle in both cases is identical viz., that the resort to falsehood in support of a claim may fairly give rise to the inference that the claim attempted to be supported by such means is unjust. It is in the nature of an implied admission by the party that his case is so bad that it cannot safely be submitted on truthful evidence, but requires to be bolstered up by false testimony. The jury may, if they see fit, infer that perjury would not be attempted by the plaintiff to support a good cause of action. There is no ground on which the plaintiff's own perjury can be favorably distinguished from his suborning others to commit perjury. How is it any worse to cause a falsehood to be uttered by the mouth of another, than to utter it by one's own mouth?

The only exception in this case is based on the refusal of the court to instruct the jury that "the veracity of the plaintiff can only be considered upon the consideration of the evidence he gave in the case." Plaintiff's counsel, in his brief, explains what he meant by this request, viz., that the jury were not at liberty to consider the truthfulness of the plaintiff, "except as an element in weighing such evidence as the plaintiff gave." In other words, the counsel contends that although the jury might be of opinion that Charles H. Sanborn testified falsely, yet this fact should not be allowed to have any effect beyond inducing them to discredit Charles H. Sanborn's own testimony, and could not be considered as tending to discredit Charles H. Sanborn's entire case. The objection to this requested instruction is, that it assumes to treat Charles H. Sanborn as if he were merely an ordinary witness, whereas, in fact, he was a party as well as a witness. If a mere witness (a third person, who is not a party) testifies falsely, it does not necessarily follow that the party calling him was cognizant of and privy to the falsehood. And if the party was not in any way in complicity with the attempt of the witness to deceive the jury, there is room to argue that the falsity of the witness in any part of his testimony should not be weighed by the jury, except in passing upon the credit to be given to the testimony of that particular witness. But if the false witness is the party himself, the case stands very differently. He cannot be heard to say that he is not responsible as a party for his sins as a witness. The plaintiff, in effects contends that if one who is both a party and a witness commits perjury, his case, as a whole, cannot suffer thereby any greater damage or prejudice than if the perjury had been committed by an ordinary witness having no interest in the case. On this theory, a plaintiff who testifies falsely has everything to gain and nothing to lose thereby (so far as the verdict is concerned). If the jury believe him, his case profits by the falsehood. If they disbelieve him, his case stands no worse than if he had not testified at all. This is not sound law.

The corrupt acts of the party as a witness have the same effect as his corrupt acts in any other particular respecting the conduct of the case (e.g., attempting to bribe a juror). The party's bad conduct as a witness may be considered by the jury as a circumstance tending to discredit him, not only as a witness, but also as a party. It is a circumstance having some tendency not only to discredit his individual testimony, but also to discredit the entire case set up by him as a party, — not merely to discredit so much of the case as rests on his own testimony, but also so much of his claim as is attempted to be supported by the testimony of others. The giving of false testimony by the plaintiff is a circumstance tending to show that he is conscious of the justice of the defendants' case and distrustful of his own. Such misconduct in the management of his case is in the nature of an admission by the plaintiff that the case which he is putting forward and attempting to support by the testimony of others as well as himself is not a true one. The jury may weigh the fact that a party has done anything in the conduct of his cause which an honest man would not have done in the support of a good case; and the jury may give the misconduct such weight as they think proper in passing upon the validity of the whole claim set up by that party, whether that claim be attempted to be sustained partly by his own testimony or wholly by the testimony of others.

The counsel then cited and commented on Egan v. Bowker, 5 Allen 449; Moriarty v. Company, L. R. 5 Q. B. 319; Snell v. Bray, 56 Wis. 156, 162; Chicago City Ry. Co. v. McMahon, 103 Ill. 485; State v. Staples, 47 N.H. 113, 114, 118, 119; Lyons v. Lawrence, 12 Bradw. 531; Hastings v. Stetson, 130 Mass. 76; Taylor v. Gilman, 60 N.H. 506; Murray v. Chase, 134 Mass. 92; 1 Phil. Ev. 639; 2 Whart. Ev. 1265.