#### The State *v.*Jim, a negro slave.

From Brunswick.

The testimony of a witness who is corruptly fa'se in any particular, should he entirely disregarded by the ,lur\ ; and where they Were instructed that they might, exercising a sound discretion, reject part of the tesiimony winch they did not bVlieve, and act on part which they did believe, it was held to be erroneous.

The prisoner was indicted under the act of 1823 *(Taylor’s Revisal. eh.*1229) for an assault with an intent to commit a rape upon a white female.

On the trial, the only witness who directly proved the assault, was one *Mary Rittenhouse,*whose general moral character wras soiiously imps ;>> !>. d : bul theie was no evidence of her character *for truth*when upon oath. *509
      *Mr. Holmes,*a gentleman of the bar, was railed to impeach her, wliich was i'íl'c.eted bv his provine; a material *’*' • . i variance between her evidence on the tria! of ibis indict-menl, and {hat given up m a former trial of the prisoner for I he same offence, *f Jn e*142.) /

His honor Judge Norwood instructed the Jury, that a general character such as liad been given of the witness *Rütenhouse.*" was a circumstance against her credibility, and should be taken into consideration by them, and might, if accompanied by other circumstances against her credit be thought by them sufficient to induce them to disregard her testimony. But that such general character was not entitled to as much weight, as a general character, bad in respect to troth when speaking on oath ; and in either case, as their duty was to ascertain the truth, they migl$, exercising a sound discretion, reject part of a witness’s testim *,uy*wnich they did not believe, and act on such part as th -y did believe.”

The prisoner being convicted, motions were made, on several grounds, for a new trial, and in arrest of judgment *;*which being overruled, and judgment of death awarded, the prisoner appealed.

No Counsel for the prisoner appeared in this Court;

but *Badger,*as *amicus*curiae, suggested, that, the Judge h- d erred in charging the Jury, that they might reject part of a witness’s testimony, which they did not believe, and act on that part which they did believe. He observed, that the proper instruction was, that if the Jury thought the witness had cornip iy sworn false in *iuy*particular, they ought to disregard her testimony in into. He stated the reason of the rule to be, that the Jury fad *quoad*the particular case, *judicially*awertained the corruption of he witness, and tnerefore, as in *that*case, the result was the same as in all eases, where the c uTupi . ¡n was judicially ascertained oy a conviction for perjury.

*510
      *Deverenx,*in place of fijo Attorney-General» admitted the rule to bo, as stated by *Badger.*

HENDERSON, Judge.

I understand the Judge as distinctly informing the Jury, when discussing the want of credit in a witness, arising from corruption or immorality, that although they should discredit a witness in part, because that in such part they thought the witness was both false ami corrupt, ye! they were at. liberty, if they thought, proper, to believe him in other parts of his testimony . I ha* c always understood the law to be otherwise *;*for although it is true that if the Jury should ascertain, that a witness is incorrect. in his testimony as to one or more facts, yet if he is riot corruptly so, but is merely mistaken in judgment, or by reason of a failure' in memory, the witness is not discredited further than would arise from a want of reliance on the correctness of his conception, or from a distrust in his powers of memory; and if the Jury think proper they may believe him as to other parts of his testimony7.' But when once they are *satisfied of the witness’s corruption,*they are bound, in obedience to the law, to disregard all that he swore lo. For the law does not act upon a Jury’s hare belief, their bare opinion of the fact; tlie.ir belief must be found- d on ibaf which is regarded in law, as testimony. Hence the Jury are not permitted to hear a witness who ¡s not sworn, although they might possibly believe him. So also they might believe persons convicted of an infamous crime, perjury for *instance;*but such persons are not allowed to be beard before a Jury. I can see no difference in principle, and if so, there should be none in practice, between a person heretofore convicted, and one.who stands convicted before the Jury, in the case they are trying. Hence the maxim, *falsum in uno, falsum in omnibus.*Were it otherwise, the law would be, untrue to itself. It is not every *conjecture*which floats in a Juror’s mind, that should guide him in *511the formation of his verdict. His will is not the law. He is bound to pronounce his solemn convictions after weighing the evidence, and if he cannot arrive at this state of mind, he should find against that party who holds the affirmative, that is, against him whose duty it is 10 produce satisfactory evidence to the Jury.' Nothing is more difficult than to prescribe rules of faith ; perhaps every man has one peculiar to himself. But in some cases the law has prescribed the rule, and I think that this is one of them ; and it is the duty of the Jury to yield to the law, and not to set themselves above it. Whether any of the witnesses were placed in the situation above mentioned before the Jury, I have not the right to say ; it belonged exclusively to them. But. they should be satisfied that such was the fact, before they acted under it. There should be such evidence of falsehood and corruption, that they as Jurors, would convict the witness, were he on trial before them ; if they doubt upon the subject, the law does not forbid them to believe the witness. As the Jury may have been misled by the charge, I think that there should be a new trial.

Tatxor, Chief-Justice.

There are many exceptions taken in this case, which I think it is unnecessary to notice ; fori suppose they would not be seriously insisted on. The prisoner being without Counsel, I have fdlt it to be a duty to examine the record attentively, to ascertain whether there are any points, which ought to have been ruled differently.

The only direct evidence of the assault was that of *Mary*’Rittenhouse, whose credibility was assailed, on the ground of her immoral character; and *Mr. Holmes*has pointed out some important variations in her testimony, since the time she gave evidence on the first trial. All the rest of the evidence on the part of the State, is supplemental, and intended to be confirmatory of her’s. Whether she was entitled to belief, was a question alto-*512getber for the di*torminafion of the Jury, and whether they have derided right or wrong, this Court cannot in-terlere with their verdict. But the prisoner was entitled to the full benefit of that advice from the Court to 'he Jury, which should enable them to weigh the evidence according to the principles whirl) the law has established. Wow the Court instructed the Jury, that “a general charai ter, such as that of *Mary Rit1 enhouse,*was a circumstance against her credibility, and should be taken into consideration hy the Jury, and might, if accompanied with other ciicumstances against the credit of the witness, be thought by the Jury to he sufficient to induce them to disregard her testimony. But that such general character was not entitled to as much weight, as a general character had in respect of truth, when speaking on oath.” — The correctness of this direction, it is not my purpose to enquire info ; if is cited to show, that the Jury were thereby prepared to have their confidence in the credibility of the witness weakened on the score of her corruption, or immorality of character. The Court then proceeds to state, “that in eittier case, as their duty was to ascertain the truth, they might, exercising a sound, discretion, reject part of a witness’s testimony, which they did not believe, and act on such part as they did believe.” And it is in this respt-ct, 1 think the prisoner has not received the full benefit of such legal advice as the Judge ought to have given to the Jury.

I believe that all the writers on the law of evidence, lay down the rule, that a witness who gives false testimony, as to one.particular, cannot be ci edited as to any, the maxim being *“falsum, in uno, falsum in*omnibus.” And it is very reasonable that it should be so; for the general presumption that a witness will tell the truth,is overthrown, when it is shewn that he is capable of perjury. Our faith (says an accurate writer on evidence) Canrvo* be partial, or fractional; where any material fact rests ou the testimony of a witness, the degree of *513credit due to him must be ascertained, and according' to the result, his testimony is to be credited-or rejected. A . . , , . ./» . . witness, whosu rrjisrepresentation results trom mistake or infirmity, and not fri.m design, is of coins'1 not within the operation of the principle ; his integrity remains un-impeached, though his character for ability may be im-paiied. On this ground, theielore, and especially in a case affecting the life of the prisoner, I feel hound to give my opinion in favor of a new trial. As I give no opinion upon the other objections, it will of course be Considered, that I do not regard any of ihetn as tenable.

Per Curiam. — Judgment reversed, and rule for a new trial made absolute.