Opinion
No. 28847.
November 3, 1930. Suggestion of Error Overruled, November 17, 1930.
1. CONSPIRACY.
Instruction, if jury believed from circumstances disclosed that plaintiff was party to conspiracy for purpose of instituting suit, they must find for defendant, held improperly refused, where warranted by evidence.
2. TRIAL. Instruction, if jury believed any witness willfully swore falsely to material facts, jury could disregard all his testimony, held erroneous.
An instruction of this character must always contain the full equivalent of the limitation that such false swearing was "wilfully, knowingly, and corruptly done."
APPEAL from circuit court of Warren county. HON.E.L. BRIEN, Judge.
Dabney Dabney, of Vicksburg, for appellant.
A conspiracy may be proved like other controverted facts, by the acts of the parties, or by circumstances and a positive agreement or common purpose or design need not be sworn to by a witness and an instruction telling the jury that a conspiracy may be proven by circumstantial evidence should be granted.
Street v. State, 43 Miss. 1; Osborn v. State, 99 Miss. 410; Pickett v. State, 139 Miss. 529; 5 R.C.L., sec. 37, p. 1088.
A person who instigates or procures a libelous communication to be published against himself for the purpose of predicating a suit for damages on it, cannot recover in such an action.
17 R.C.L., sec. 62, Libel Slander.
An instruction as to the credibility of witnesses which omits the essential qualifying words, "wilfully, knowingly and corruptly" is erroneous.
White v. State, 52 Miss. 216; V. M.R.R. Co. v. Hedrick, 62 Miss. 28; Miller v. State, 35 So. 690; Sardis D.R. Co. v. McCoy, 85 Miss. 391; Davis v. State, 89 Miss. 119; Bell v. State, 90 Miss. 104; Turner v. State, 95 Miss. 879; Shelton v. State, 126 So. 390; D'Antoni v. Albritton, 126 So. 836; McClure v. State, 128 So. 764.
Vollor Kelly and Chaney Culkin, all of Vicksburg, for appellee.
An instruction telling the jury that they might, on circumstantial evidence alone without any regard to the other evidence, find that a conspiracy had been proved is a comment on the evidence. There was no evidence in this case on which to base such an instruction. For these reasons it was properly refused.
An instruction complained of in the instant case telling the jury that if they believe any witness has wilfully sworn falsely, not wilfully and falsely, his testimony might be disregarded, etc., is not erroneous. If any witness has wilfully sworn falsely, it follows, as a matter of course, that he intended to swear falsely, and if he intended to swear falsely, and did swear falsely, there can be no possible escape from the proposition that he testified corruptly.
Black's Law Dictionary; Anderson's Law Dictionary defining "willful."
Argued orally by J.B. Dabney, for appellant, and by R.M. Kelly, and A.A. Chaney, for appellee.
The following instruction requested by the appellant was refused by the court:
"The court instructs the jury for the defendant that direct evidence is not essential to meet the legal requirements in proving a conspiracy, but that a conspiracy may be proved by circumstantial evidence, and if the jury believe from all the circumstances as disclosed by the evidence in this case that this plaintiff was a party to a conspiracy for the purpose of instituting and maintaining this suit, they must find for the defendant."
Appellee seeks to justify the refusal of that instruction by the contention that there was substantially no testimony to warrant it. On the contrary, the chief defense made by appellant, and a large part of its testimony, was exactly upon the theory sought to be recognized by the said instruction. And the refusal of the instruction cannot be said to have been harmless, since it is a matter of common knowledge that some jurors act with stubborn hesitancy on circumstantial evidence. The existence of this trait of character among some men is so well known that it has always been admitted, in a relevant case, as a legitimate inquiry of a tendered juror whether he will consider, or can be convinced on, circumstantial evidence — and as a ground for challenge if he answer in the negative. We think the refusal of the instruction in this case was error.
At the request of appellee the court granted an instruction as follows:
"The court instructs the jury that they are the sole judges of the credibility of witnesses and if they believe from the evidence that any witness in this case has willfully sworn falsely to any material fact testified to, then the jury may disregard the entire testimony of such witness, or they may believe a part and reject a part."
The quoted instruction is in substance the same as that condemned in D'Antoni v. Albritton, 156 Miss. 758, 126 So. 836. See, also, McClure v. State (Miss.), 128 So. 764, 766, and the long line of cases cited therein. An instruction of this character must always contain the full equivalent of the limitation that such false swearing was "wilfully, knowingly, and corruptly done." Railroad Co. v. McCoy, 85 Miss. 391, 37 So. 706. So often and throughout so many years has this announcement been reaffirmed that our course of action now must be as stated in the McClure case, supra: "So many cases have been reversed for this error that we are under the necessity of reversing and remanding this case for another trial, for the erroneous giving of this instruction."
There are more than twenty additional assignments of error. Most of them, we think, are not well taken; and, since those which are substantially debatable may be avoided in a new trial, we will not undertake to deal with them at this time.
Reversed and remanded.