
    SUPREME COURT.
    The People agt. William Payne.
    A charge to the jury that the credibility of a witness was a matter resting with themselves, irrespective of any contradictions that might appear in his testimony on the trial, and his affidavit on a former occasion:
    Meld, erroneous.
    
      New York General Term, July, 1865.
   By the court, Sutherland, J.

There were certainly material discrepancies between the affidavit of Knapp before the police magistrate and his evidence on the trial; and the evidence tended to show that he had given a somewhat different account of the transaction in conversations with various persons.

The prisoner was convicted on the testimony of Knapp alone.

■ According to the return, the charge of the city judge was as follows: You have heard the evidence of Knapp; you can judge by his manner, and by his statement before you, what degree of credit you will give to his testimony. It is a matter resting purely with yourselves, irrespective of any contradictions that may have taken place either at the police office or in his statements as to his visits to the house in Cherry street.”

It appears to me that this was, in substance, instructing the jury that, in judging of the credit to be given to Knapp’s testimony, they must disregard the discrepancies between the affidavit and his testimony, and his contradictory statements.

If the jury probably and naturally inferred that the charge meant this, there must be a new trial.

I cannot see what other construction can be put upon the charge. The word irrespective means, not regarding, or considering, regardless of.

The district attorney, I have no doubt, had a right to read the whole affidavit to the jury, but I think there must be a new trial, on the ground of the error in the charge of the judge.

Leonard, J.

I think the word “irrespective” was probably intended by the judge to mean “uncontrolled,” and that the jury well enough understood that their discretion was not controlled by the contradictions of the witness, so that they were precluded from crediting him.

It may have been otherwise, and as Judge Sutherland has come to a different conclusion the question cannot be considered free from doubt. The prisioner is entitled to the benefit of the doubt. I concur that the verdict should be set aside and a new trial be had.

Note.—We had intended, in the last volume—35 Howard's Practice Reports^ to have referred to the Digest contained in this work. Fiom and including the 30th volume, the Digest in each volume, has comprised a full and complete digest of all the cases reported in the respective volumes of reports therein mentioned. The caption to the digest in each of the volumes of this work, from and including the 30th, is calculated to mislead, as it says: “ Digest of the Points of Practice and Other Important questions, contained in the following reports.” When, in fact, it should read (as if will hereafter): “ Digest of all the Decisions contained in the following reports.” Reporter.

Barnard, J., dissented.  