When the people rested their case, evidence had been given tending to prove that the defendant was guilty of the homicide charged in the indictment, all such evidence being circumstantial in its character, but establishing quite satisfactorily that he was the guilty person.
Thereupon the defendant went to the stand and was sworn as a witness in his own behalf and testified relative to the receipt by him of certain letters from the hands of one of the witnesses, Mrs. Lamperts, and that the same was not at that time in his possession nor under his control.
He also testified as to the time when he purchased a pistol, which, as may be fairly inferred, was conceded by him to be the pistol found in the house, near the body of the deceased. He did not, on his direct examination, make any reference to the circumstances attending the killing, nor to his whereabouts or doings in Auburn, preceding the homicide, nor to his movements and actions after the killing.
On his cross-examination, conducted by the district attorney, he gave a minute account of his journey from the city of Hew York to the city of Auburn, of his whereabouts in the latter place and conversations had by him with individuals up to the time of his last visit to the house of the deceased and his interviews and conversations with her up to the time of taking her life. He was also questioned by the district attorney, as to all the circumstances connected with the killing and as to the taking away by him from the house, property belonging to the deceased and her husband.
If the jury believed his evidence as to the altercation which he stated did take place between him and the deceased and her attack upon him before he struck the fatal blow, then the jury would have been justified and most probably would have found him guilty of an offense less than murder in the first degree. On comparing some of his statements made as a witness with the testimony given by others on the trial, it will appear on some points material, as well as immaterial, he was in conflict with statements made by the people’s witnesses. In some instances he made contradictory statements while on the stand while undergoing an examination conducted by the district attorney, as to his acts and conduct, both before and *464after the homicide, as to which no other evidence was given.
In the charge to the jury, the learned judge, in commenting on the defendant’s evidence, as to its credibility and the effect which they should give to the same, said in substance, “ that the testimony of the prisoner was entitled to all the weight which the jury could fairly give it, and the same was subject to the same test as other witnesses and in his further charge on the same subject, said, “ So far as the testimony of the prisoner at bar is contradictory of itself it cannot be true. Two contradictory statements cannot be true. When he testifies he know n'othing of the personal property which he took from that house, until after he took the cars at Auburn, and when he testified afterward he took the watch from the wall and took the bank-book from the bureau drawer, as far as those statements are contradictory one of them is to be considered false. Wherever you find that the prisoner has made a statement not true, to establish a falsity instead of a truth, his testimony is not entitled to the credit of a witness who stands fairly before you uncontradicted. His testimony, then, is entitled to no weight or credit of itself, except so far as it is consistent with the known and established facts of the case, or corroborated by the testimony of other witnesses. This is a consideration which you cannot avoid; it is forced upon you by the facts of the case and the importance of the issues here involved. When he testified that he had no purpose to draw any money on the bank-book, having been surprised at finding it in his possession on his way to Albany, and on his cross-examination says he took it from the bureau drawer, and that he took it with the intention to draw money with which to escape to Hew York, and when being reminded he had money enough to go to Hew York, he testifies he intended to draw money enough upon it to keep him in Hew York for a time, —one of these statements must be false, and, if intentionally false, the inference of a falsity attaches to the whole of the evidence which he has given in the case.” To this part of the charge, the defendant’s counsel excepted, and the court thereupon further instructed the jury, “ If the prisoner is shown to have deliberately falsified in his evidence, with the intent to *465mislead and deceive the jury as to the facts of this case, the jury cannot give weight to the testimony of the prisoner, of itself—that the testimony is not entitled to credit as of itself, but is entitled to credit only so far as the jury shall find it to be consistent to the known or established facts of the case or corroborated by the testimony of other witnesses ; I say further to you that this does not brand the testimony as false ; it only declares that if he has willfully and purposely falsified in any portion of his testimony, then his testimony, of itself and alone, does not establish the truth of any thing to which he has testified. All that he has testified to might be true notwithstanding the fact that his testimony of itself did not establish the truth.”
Upon these instructions the court adopted and applied asan absolute and inflexible rule of the law of evidence the maxim, “falsus in uno, falsus in omnibus.” In my opinion, this maxim is not a legal one, and has never prevailed as such in the common law courts of England or in this country. Hone of the commentators on the law of evidence most relied upon as authority for correct precepts and principles—such as Greenleaf, Phillips or Starkey—state the same as an absolute rule of law, but all of them concur in saying that the question of credibility of a competent witness is for the consideration of the jury, as they are the sole judges of the truth of the evidence before them. 1 Greenleaf Ev. §380; Starkey on Ev. 873. Hor is the same found in Broom's Legal Maxims nor in any other similar collection to which I have access.
When evidence pertinent to the issues being tried before a jury has been given in a legal manner by competent witnesses, there is no positive rule of law which excludes the same from the consideration of the jury, on the sole ground that the witness who gave the testimony has, in some other part of his evidence, deliberately sworn falsely. Such disregard of his oath by the witness, may be enough to justify a jury in disregarding his evidence as altogether unworthy of respect and credence, and for this reason to place no reliance on any of his statements. When the evidence of a witness is open to the imputation of being deliberately and intentionally false, it is the duty of the court, to caution the jury concerning such evi*466dence, and to instruct them, if they find the witness has intentionally made false statements with an intention to mislead them, then they have the right and may utterly disregard all, his evidence in other particulars.
If, however, the evidence produce a clear and undoubted conviction in their minds, the jury may act on such conviction, whether the evidence comes from a pure or a corrupted source. The maxim “ Falsus, &c.” is intended as a guide for the. tribunal charged with the duty of finding on disputed questions of fact. In jurisdictions where the functions of the judge are limited to deciding questions of law, as they arise in the progress of a trial, and a jury is chosen to determine the questions of fact, the application of the precept is to be made by the jury if applied at all. This maxim had is origin in the civil law, where both questions of law and fact were beard and determined by a fixed tribunal without a jury. In similar tribunals in this country, as in courts of equity and admiralty'courts, the judge, in solving disputed questions of fact, may very properly apply the same and reject the evidence of a witness who has purposely sworn falsely on a material issue.
Here the defendant was a competent witness, and gave evidence as to facts and circumstances, attending the homicide, which the jury, of necessity, were required to consider and determine with a view of fixing the degree of the defendant’s guilt. As to such testimony so given by himself, he was not directly contradicted by any witness, and only contradicted by facts and circumstances claimed to have been established by the testimony of other witnesses; and yet, notwithstanding these features of the case, the jury were instructed in very plain and distinct terms that it was the law of the land, that they could not and ought not to believe any of the defendant’s statements if, in any particular statement made by him, he had stated the same falsely and deliberately, unless corroborated by other evidence, although they might believe his evidence to be true in many other particulars.
The decisions, in England and in this country, demonstrate that these instructions on the law of evidence were erroneous. In 1809, in the case of the King v. Teale, 11 East, 307, Lord Ellenborough said ; “ Although a person may be proved *467on his own showing or by other evidence to have forsworn himself as to a particular fact, it does not follow that he can never afterwards feel the obligations of an oath, though it may be a good reason for a jury, if satisfied that he has sworn falsely on the particular point, to discredit his evidence altogether. But still that would not warrant the rejection of the evidence by the judge; it only goes to the credit of the witness on which the jury are to decide.” Here a clear distinction was drawn between the competency and credibility of a witness. In Dunn v. People, 29 N. Y. 523, it is there stated that the question of credibility is for the jury and is not a rule of law to be laid down by the court, as a guide for the jury. The principal witness for the people admitted that upon another trial she had made a contrary statement as to a material fact, and that she knew, at the time she gave that evidence, she was then swearing falsely. The court left the question of the witness’ credibility to the jury, after stating to them that they should be cautious and careful as to the degree of reliance they should place on her evidence. The defendant’s counsel requested the further instruction to the effect, that because the witness had sworn falsely on a former occasion, they ought to acquit the prisoner. This was refused, and the prisoner excepted.
In the opinion it is stated, Denio, J.: “ The court could not act further without usurping the domain of the jury; for to them the law has intrusted the right of determining upon the credibility of witnesses. I quite agree that it is the duty of the court in such cases, to be sedulous in guarding the jury against hastily or inconsiderately acting upon the testimony of the witness ; but it has no right to direct an acquittal on such grounds, or to instruct them as a matter of law, wholly to disregard the testimony, or what is the same thing, entirely to withdraw it from their consideration.”
These views were concurred in by the court in the case of Roth v. Wells, decided at the same term, in an opinion prepared by Selden, J., and reported in 29 N. Y. 492, wherein it is said: “ The object of all testimony is to establish the truth, and however corrupt the instrument of evidence may be, I am not aware of any legal rule, which forbids a jury to give credit to such evidence (when the law allows it to be submitted to *468their consideration), so far as they may believe it to be truthful.” '
The question was up again in Pease v. Smith, 61 N. Y. 477, and it was there said, that under the maxim “falsus in uno, falsus in omnibus,” the court had no power to instruct the jury that they ought not to place reliance upon the statements of such a witness; that the jury were not under any legal duty or obligation, to obey the maxim, as the jury were at liberty to believe the witness, notwithstanding they may, if they see fit, disregard his testimony.
In Deering v. Metcalf, 74 N. Y. 501, the subject was again under consideration, and many of the cases in this state referred to and commented upon, but no decision was arrived at upon the point, as the court expressly state, that it was not called upon, in that case, to say, what is, or should be, the rule in the case of a witness, of whom it is apparent that he has sworn corruptly false.
The case of Dunlop v. Patterson, 5 Cow. 243, has been cited as holding as a matter of law that the court should instruct the jury to disregard all the evidence of a. witness who had sworn intentionally false on any material question. It is not plain that the court intended to affirm any such proposition, and if it was so laid down in that case it was repudiated in the subsequent case of Dun v. People, supra, where it was fully commented upon and limited in its application.
In Massachusetts, it has been held that there is no absolute and inflexible rule of law, that the testimony of a witness is to be wholly disregarded and rejected except in those particulars where there is a corroboration by other credible witnesses, if the jury find that the witness has deliberately sworn false in relation to a material matter, and it is for the jury in all eases to say how much faith shall be given to the testimony of such witnesses in other particulars. Commonwealth v. Billings, 97 Mass. 405.
The rule is the same in many other states, and the following cases are cited, as expressing the law in those states: Knowles v. People, 15 Mich. 409; Litton v. Young, 2 Metcalf, Ken. 558; Mercer v. Wright, 3 Wis. 645 ; Finley v. Hunt, 56 Miss. 221; *469Mack v. State, 48 Wisc. 286 ; People v. Sprague, 53 Cal. 494 ; Miller v. Stem, 12 Pa. 289 ; Pennsylvania Coal Co. v. Conlan, 121 Ill. 108; Mead v. McGraw, 19 Ohio, 55 ; Lewis v. Hodgdon, 17 Me. 267.
The Santissima Trinidad case, reported in 7 Wheat. 286, is not in point, for there the maxim was applied by the court not as a rule of law but as a test as to the credibility of witnesses to be applied by the court in disposing of a question of fact without the intervention of a jury.
The Schooner Boston, 1 Sumn. 556 was also an admiralty case, and the rule was applied by the court in disposing of a disputed question of fact.
If it be conceded that the maxim is in full force in this state as a rule of law, its application should be limited to cases where the witness has sworn falsely as to a material fact; but in the case at bar it was not so limited by the learned judge, and the jury would have been justified by the instructions, to discredit all of the defendant’s evidence, if he had sworn falsely as to any of the immaterial facts about which he testified, although they believed his statements wherein it related to material facts and circumstances.
If the rule ever prevailed in this state, I think it has been changed by legislative action, in adopting section 332 of the Code of Civil Procedure, which makes persons who have been convicted of felonies competent witnesses in civil and criminal actions, and such conviction is only evidence affecting the weight of such witnesses’ testimony.
A witness guilty of perjury and detected by the jury before whom he is testifying should not be held incompetent to testify as to other material matters in issue, any more than a person convicted of the crime of perjury in a criminal prosecution charging him with that offense.
In this court it is not necessary for the defendant to take an exception to an erroneous ruling by the court, and the same may be considered on appeal, the same as if a due exception had been taken. If however, it were necessary for the prisoner to take an exception, with a view of having the point reviewed here, the exception taken presents the question, and the direc*470tion thereafter given by the court to the jury did not cure the error, but was a repetition of the same in a more objectionable form.