Payne v. Reese , 28 Ga. App. 180 ( 1922 )

Stephens, J.

1. Where under the evidence it was a question for the jury whether a material witness for the prevailing party, upon whose testimony the jury may have relied in finding a verdict, swore willfully and knowingly falsely, and was uncorroborated, it was error for the judge, in the absence of any instruction, in his general charge to the jury, as to the rule governing the weighing of the testimony of a witness who has sworn willfully and knowingly falsely, to refuse to charge, after having been timely and properly requested in writing so to do, that part of section 5884 of the Civil Code (1910) which reads as follows : “ If a witness swear willfully and knowingly falsely, his testimony ought to be disregarded entirely, unless corroborated by circumstances, or other unimpeached evidence.” See Pierce v. State, 53 Ga. 365 (1); Pope v. State, 150 Ga. 703, 705 (4) (105 S. E. 296).

2. The evidence authorized a charge by the court based upon the hypothesis that the act of the plaintiff at the time of his injury was due to the existence of an “ emergency.”

3. The trial court erred in overruling the motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Hill, J., concur. A. L. Franklin, John M. Graham, contra,

cited: Civil Code (1910), § 2884; Brown v. State, 10 Ga. App. 50 (2), 56; Ware v. State, supra; Waycaster v. State, 136 Ga. 95 (3), 102; Sims v. Scheussler, 5 Ga. App. 851, 852; Stevens, Index-Dig., Vol. 1, p. 468, catchword “Perfect”; 11 Enc. Pl. & Prac. 337; 31 Mo. 406; 29 Mo. 215, 217. Citations for plaintiff in error distinguished. Cited also, on motion for rehearing, 2 Thomp. Trials (ed. 1889), § 2424; Pierce v. State, and Pope v. State, supra, distinguished.