evidentiary rules, is regarded generally with great satisfaction. The liberal provisions of the New York statute, previously referred to, have been generally adopted. The design of this statute obviously, was to remove all disabilities, even those that surround a felon; and courts do but violence to its plain import and intention, if they seek to circumscribe or restrict its beneficent operation. The force of a witness's testimony depends upon the credit the jury think it entitled to; and no court has a right to lay down for a jury rules whereby they shall determine the force of evidence, irrespective of the credence they actually give it in their own minds. People v. Jenness, 5 Mich. 305; People v. Schweitzer, 23 Mich. 310; People v. Wallin, 55 Mich. 497. They are the sole and exclusive judges of the credibility of the witnesses. With that the court has nothing to do, and if they find from the evidence that any witness or witnesses have willfully testified falsely to any material fact in the cause, they are at liberty to disregard the whole or any portion of such witness or witness's testimony. State v. Johnson, 91 Mo. 439. § 202. Effect of False Testimony on Credibility. — The question frequently arises in criminal investigations, as to the degree, if any, of credibility that shall be accorded to a witness who is shown to have testified falsely-is his entire testimony to be excluded? Fortunately this question has been thoroughly ventilated by the supreme court of Ohio in the case of Stoffer v. State, 15 Ohio St. 487, 86 Am. Dec. 470. I excerpt from an opinion of exceptional merit delivered by Mr. Justice Ranney who read for reversal in that case: "An ancient maxim of the law of evidence-falsus in uno, falsus in omnibus-would seem to import such exclusion by raising a presumption of law, juris et de jure, that a witness who is certainly shown to have committed perjury upon one material point in the case should be deemed wholly unworthy of credit upon any other, and his testimony be absolutely rejected. In most of the cases brought to our attention in the argument, where this maxim has been referred to, no attempt has been made to define its limits and proper application, while in many it has been very inaccurately used as applicable to witnesses who have been merely contradicted upon some material point, without raising any just imputation of perjury against them. Among the elementary writers upon evidence whose works have been examined by us, Mr. Starkie alone has stated the solid reasons upon which the maxim rests, and the case to which alone it can be applied. He says: 'As the credit due to a witness is founded in the first instance on general experience of human veracity, it follows that a witness who gives false testimony as to one particular cannot be credited as to any, according to the legal maxim, falsus in uno, falsus in omnibus. The presumption that the witness will declare the truth ceases as soon as it manifestly appears that he is capable of perjury. Faith in a witness's testimony cannot be partial or fractional; where any material fact rests on his testimony, the degree of credit due to him must be ascertained, and according to the result, his testimony is to be credited or rejected.' 'It is scarcely necessary to observe,' he adds, 'that this principle does not extend to the total rejection of a witness whose misrepresentation has resulted from mistake or infirmity, and not from design; but though his honesty remain unimpeached, this is a consideration which necessarily affects his character for accuracy.' 1 Stark. Ev. 873." This subject was considered by the court in Dunn v. People, 29 N. Y. 523, 86 Am. Dec. 319, and each of the judges who de. livered opinions in that case arrived at the conclusion that the jury were still at liberty to consider the evidence of such a witness; notwithstanding the fact of his having sworn falsely concerning the same subject upon a preceding examination. In referring to this subject, Denio, Ch. J., stated that, "the true question is whether, when it appears that the witness has sworn differently upon the same point on a former occasion he is to be pronounced by the judge to be incompetent and his testimony stricken out and wholly excluded from consideration, as though he had been convicted of crime rendering him incompetent to testify as a witness, or whether the testimony remains in the case to be considered by the jury in connection with the other evidence, under such prudential instructions as may be given by the court and subject to the determination of the court having a jurisdiction to grant new trials in cases of verdicts against evidence. In my opinion, the latter is the correct principle of law." And as this was assented to by Ingraham, J., who delivered the other opinion, and by all the other judges of the court, it seems to be sufficient to establish it as the principle which should be followed under this state of facts on the trial of an indictment. The same point was further examined in Deering v. Metcalf, 74 N. Y. 501, where the cases were fully considered and the disposition of the court appeared to be to follow the principle which has just been stated, and not that in general terms announced in Dunlop v. Patterson, 5 Cow. 243. Further consideration was given on this subject in People v. Reavey, 38 Hun, 418, 4 N. Y. Crim. Rep. 1, where the same rule was followed, and as that case has been affirmed by the court of appeals it is in the nature of a conclusive authority. "The tendency of modern authority is to relax and restrict the application of the maxim falsus in uno, falsus in omnibus. The jury are not bound to wholly discredit a witness if his testimony as to material facts is corroborated by other credible and unimpeached witnesses. In Grimes v. State, 63 Ala. 166, it is said, 'We are prepared to follow the line of authorities which hold the maxim is not a rule of law operating a disqualification of the witness, to be given in charge to the jury as imperatively binding them; that it is to be applied by the jury according to their sound judgment for the ascertainment and not for the exclusion of truth.' The charge given by the court is in accordance with this rule. It does not instruct the jury that they are bound to disregard the testimony of impeached witnesses, but left it to their sound discretion and judgment. . . The present charge is based on the willful and corrupt false swearing of the witnesses. In such case there is no error in instructing the jury that they may disregard their evidence." Jordan v. State, 81 Ala. 20. There is no rule of law that the entire testimony of such a witness must be disregarded. People v. Reavey, 38 Hun, 418, 4 N. Y. Crim. Rep. 1; People v. Buddensiek, 4 N. Y. Crim. Rep. 230; People v. Stott, 4 N. Y. Crim. Rep. 306. CHAPTER XXX. PRIVILEGE OF WITNESSES. § 203. Refusal to Answer Criminating Questions. 205. Court must Determine the Force of the Refusal. 207. Recent Judicial Reviews of the Subject. 208. The Privilege of Attorneys. 210. The Privilege of Clergymen. 203. Refusal to Answer Criminating Questions.-It often happens that a question is asked a witness, the answer to which would not of itself be self-criminating, but would form a "link" in the chain of testimony which would involve a conviction. In such case, by numerous authorities, it is held that he is entitled to protection without explaining how the answer would criminate him. And the court is bound to advise him of the effect of an answer by him. Lea v. Henderson, 1 Coldw. 146; Short v. State, 4 Harr. (Del.) 568; Marshall v. Riley, 7 Ga. 367; Richman v. State, 2 G. Greene, 532; Robinson v. Neal, 5 T. B. Mon. 213; Rutherford v. Com. 2 Met. (Ky.) 387; State v. Marshall, 36 Mo. 400; Coburn v. Odell, 30 N. H. 540; Janvrin v. Scammon, 29 N. H. 280; Bank of Salina v. Henry, 2 Denio, 156; United States v. Moses, 1 Cranch, C. C. 170; Sanderson's Case, 3 Cranch, C. C. 638; United States v. Lynn, 2 Cranch, C. C. 309; Fries v. Brugler, 12 N. J. L. 91; Stewart v. Turner, 3 Edw. Ch. 458; United States v. Strother, 3 Cranch, C. C. 432; People v. Mather, 4 Wend. 229; Poole v. Perritt, 1 Speer, L. 128; Chamberlain v. Wilson, 12 Vt. 491; Cook v. Corn, 1 Overt. 340; State v. Edwards, 2 Nott & McC. L. 13; Southard v. Rexford, 6 Cow. 259; Pickard v. Collins, 23 Barb. 444; Pleasant v. State, 15 Ark. 624; Higdon v. Heard, 14 Ga. 256; Fisher v. Ronalds, 16 Eng. L. & Eq. 417; Hageman, Privileged Communications, § 259. § 204. Witness may Waive his Privilege.—While it is the privilege of the witness to refuse to answer the question tending to criminate, he may waive his privilege at any stage of the inquiry. Higdon v. Heard, 14 Ga. 256; Pleasant v. State, 15 Ark. 624; Pickard v. Collins, 23 Barb. 444; Southard v. Rexford, 6 Cow. 259; State v. Edwards, 2 Nott & McC. L. 13; Cook v. Corn, 1 Overt. 340; Chamberlain v. Wilson, 12 Vt. 491; Poole v. Perritt, 1 Speer, L. 128; People v. Mather, 4 Wend. 229; Stewart v. Turner, 3 Edw. Ch. 458. A waiver by his counsel is equally effective. 205. Court must Determine the Force of the Refusal.— The court must, in the first instance, determine whether the question is such that it may be reasonably inferred that the answer made is criminating; and the nature of the answer, as it is known to the witness alone, he alone must decide. If the information sought may be self-accusing, and the witness says it is, he need not answer. La Fontaine v. Southern Underwriters Asso., 83 N. C. 132. "If a witness," says Judge Denio, "object to a question on the ground that an answer would criminate himself, he must allege in substance that his answer, if repeated as his admission on his own trial, would tend to prove him guilty of a criminal offense," adding, "if the case is so situated that a repetition of it on a prosecution against him is impossible, as where it is forbidden by a positive statute, I have seen no authority which holds or intimates that the witness is privileged." People v. Kelly, 24 N. Y. 74. It is of the utmost importance to heed this paragraph from the opinion of Judge Denio, as by express legislation in many jurisdictions witness summoned before an inquisitorial body, judicial or legislative, is protected from criminal prosecution, in so far as his answers given before such body may be used against him. The corollary follows that in jurisdictions where such legislation prevails, the privilege of silence has become practically annihilated. An early Iowa case declares that in no event is it left to the witness to determine, whether his answer would tend to criminate him or not. He is not required to explain how he would be criminated, for this would or might annihilate the protection secured by the rule. But it is for the court to determine whether the answer can criminate him, directly or indirectly, by furnishing direct evidence of his guilt, or by establishing one of many facts which, together, may constitute a chain of testimony sufficient to warrant his conviction, but one part of which, by itself, could not produce such result. State v. Duffy, 15 Iowa, 425. |