Action in replevin for possession of a cow. Verdict and judgment for plaintiff and defendant has appealed.
One Ol Patterson, a son of defendant, testified as a witness for defendant and in rebuttal plaintiff was permitted, over the objection of defendant, to prove statements made by Patterson out of court that contradicted his testimony on the witness stand. This is assigned as error.
This evidence was admitted solely for impeachment purposes and no foundation for the admission of said testimony had been laid by interrogating the witness Patterson in relation thereto when he was on the witness stand.
This court in the case of Mattie Rooker v. Deering Southwestern Railroad Co., 226 S.W. 69, decided at this term, held such action error and we can see no reason to depart from that holding. In view of the fact that the issues were sharply drawn and this witness being an important one, we cannot say the error was harmless.
The court at the request of plaintiff gave the following instruction: "The court further instructs the jury that they are sole judges of the value and credibility of the witnesses' testimony and that in considering their testimony, his or her interest in the case, or manner on the stand should be considered, if you believe that any one of said witnesses wilfully perjured his or herself while giving testimony in this cause, then you are instructed to disregard any or all of such testimony." *Page 440
The court should at all times be cautious in giving instructions of this character. Such an instruction should not be given unless there is something in the case to indicate that some witness may have wilfully testified falsely. When such an instruction is given, it should never tell the jury that they must disregard the testimony of any witness. The most that the court ought to say to the jury in an instruction of this character is that they should disregard such false testimony and are at liberty to, or may, disregard any part or all of the testimony of such witness.
This instruction also told the jury that if they believed any witness had wilfully perjured himself while giving testimony, then the jury should disregard any or all of such testimony. That language is, to say the least, very unfortunate. The jury might not correctly understand what is meant by the word "perjury" and that term should not be used in an instruction of this kind.
Judgment is reversed and the cause remanded.
Farrington and Bradley, JJ., concur.