Frazier v. State

¶11. As to physical examination i n rape cases.

¶2There is no proof of the venue of the offense, and the judgment cannot be sustained. As the case must be retried, we have thought best to consider the charge to the jury. We think the court properly refused to give the fourth and seventh instructions asked by defendant;* we have been directed to no principal or precedent in support of them, and they embody principles that seem necessarily unsound.

¶3% Instruction as to credibility of "witnesses considered.

¶4There was no error in the instructions given for the State, unless it be found in the following: “If the jury find that any witness has sworn falsely to any material fact, they may, if they see proper, disregard the whole testimony of such witness.” False swearing as to a particular fact warrants a jury in discrediting the entire testimony of a witness only when it is wilful, and the instruction is incomplete in omitting this. Moreover, the instruction might be construed as warranting a jury in disregarding testimony which it believed to be true, if it emanated from a witness who had sworn falsely to some other fact. Thus construed, it does not reflect the law, for, although a witness is found to have wilfully testified falsely to a material fact, the jury will not be warranted in disregarding other parts of his testimony which appear to- be true.

¶5As there is absolutely no proof of venue, the judgment must be reversed, and the cause remanded.