The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-06-23
LPABLE AND PROBABLE
Two Words Which the Supreme
Court Defines.
MAYW. CASE TOBERETRlED
Higher Court Aff1rms the Decision of the
Lower Court in Granting a New
Trial by Reason of Errors in
the Instructions,
Special Dispatch to the Standard


Helena, June 22.-The supreme court
to-day rendered decision in the case
of Duncan Cameron VS. George Went
worth, appealed from the district court
of Lewis and Clarke county, on a
claim and delivery action to recover
possession of two race horses, one of
which is the famous May W., run
ming mare of considerable value. Cam
eron secured judgment in the lower
court. Wentworth moved and secured
an order granting new trial Cam
eron appealed. The supreme court, by
Justice Hunt, affirmed the lower court,
and the case will be tried again.
Rather an odd feature of the case
was the Importance that attached to
two words in the instruction of the
lower court to the jury The lower
court in instructing the jury as to the
credibility of witnesses, said: 1T is
the duty of the jury, in passing upon
the credibility of the testimony of sew
eral witnesses, to reconcile all the diff
ferent parts of the testimony if pos
sible. 1t is only in cases where it is
probable that a witness has deliberate
ly and Intentionally testified falsely as
to some material matter and is not
corroborated by other evidence, that
the jury is warranted in disregarding
his entire testimony, Although a wit
ness may be mistaken as to some of mis-
evidence, it does not follow as a mat
ter of law that he has wilfully told an
untruth or that the jury should have
the right to reject his entire testi-
mony.'
One of the grounds upon which the
lower court granted a new trial was
the error in this instruction, the word
probable" taking the place of "palpa-
ble." Cameron's counsel. in arguing
the case before the supreme court, con-
tended that probable" was used for
''palpable" by mistake, and that the
error, If there was any, was hardly call
culated to mislead the jury, this argu-
ton that if palpabe had been used,
the instruction would have been cor
rect statement of the law
The supreme court discussed this in
terchange of words, and draws the
conclusion that the instruction will
have to be disapproved, from at least
two standpoints.
IL 10 Lie ruiz, says Tie
court, that, where a witness has will
fully sworn falsely as to any material
matter upon the trial. the jury is at
liberty to discard his entire testimony,
excepting in so far as it has been cor
roborated by other credible evidence;
but We do not understand that the
right to so discard the testimony fol-
lows if it be merely probable that the
witness has wlfully sworn falsely. In
other words, there must be a definite
belief in the minds of the jury that a
witness has actually and knowingly
testified falsely as to some material
matter before they are at liberty to
eliminate his testimony entirely; but
a belief that an actual fact exists re-
quires considerably stronger support
than does a belief that it probably ex
lists. If witness has palpably sworn
falsely it is almost self-evident that
he has done s0-the range of probable
ity is passed over and it has become
more than likely that he has testified
falsely, knowingly and Intentionally.
Therefore. where perjury is palpable,
there need be no extended discussion
upon which 10 base a finding that the
witness has Wilfully testified falsely
the jury may at once act upon the
fact so obviously and palpably demon
strated.
"But to say that jury can discard
witness has probably perjured HIM
self is to authorize elaboration, not
upon the question of whether he has
'wilfully' sworn falsely, but upon
whether it is likely he has done so.
So, although the jury might not say
they believed the witness did will
fully testify falsely, yet if they could
say that it was probable or likely
that he did so testify, nevertheless the
right to discard the entire testimony
would exist Reasoning along this line
carries us to where it is easily seen
that a jury would diverge in their con-
sideration of evidence, and too often
overlook the necessity for belief in eX-
listing facts, amid metaphysical CROP
ings for probabilities, to enable them
to ignore testimony They should not
be allowed TO do this, for if in their
Judgment probability of perjury alone
exists, they cannot legally give that
effect to the evidence which they may,
if in their Judgment, the fact of per-
Jury exists as demonstrable beyond
mere probability that it exists. There
fore, to expressly authorize a jury to
act. in discarding testimony, on prob
ability is wrong. 1t becomes an au-
thorization to them to judge of the eff
feet of evidence arbitrarily, and weak
ems, if it does not break down, the
force of that salutary rule which al
ways confines the power or jury TO
form a Judgment upon the evidence
within the exercise of legal discretion
and in subordination to the rules of
evidence.
But it is our opinion that the pre-
mise which would regard the instruc-
ton as sound if it had read 'palpable'
instead of probable is false and un-
sound, and that the instruction would
stiu be inherently bad with the word
'palpable' imported into it, for the
reason that it circumscribes the power
of the Jury in giving effect to evidence
by limiting their right to discard the
testimony of a witness, to those in
stances only where it is 'palpable' the
wines. has wilfully sworn falsely
and is not corroborated by other evil
dence."
The court directs that upon the sec
ond trial the plaintiff change his COM
plant to conform with the require
ments of pleading> and proving the
right to the immediate possession of
property. as is essential to maintain
an action in claim and delivery.