However, the disparity in the number of witnesses testifying to a particular fact is sometimes significant and frequently is not to be overlooked nor disregarded. If the jury should regard the witnesses to be worthy of belief, the numerical strength might control. Abraham v. Wilson Co., 121 N. J. L. 530, 3 A.2d 576, 577; Davies v. Philadelphia Rapid Transit Co., 228 Pa. 176, 77 A. 450, 453; Sullivan v. Nesbit, 97 Conn. 474, 117 A. 502, 503; Eilers v. Chicago Transit Authority, 2 Ill. App.2d 233, 119 N.E.2d 449, 451; 32 C.J.S. Evidence, § 1022c, p. 1055; 23 Am. Jur. Evidence, § 1190, p. 1044. In the trial of this cause, no witnesses were produced by the respondent to refute the fact that he had imbibed.
Compare Gilpin v. Merchants National Bank, 165 F. 607, 611, 20 L.R.A., N.S., 1023 (3 Cir. 1908), where a false statement was held to connote a guilty scienter; and Wood v. State, 48 Ga. 192, 297, 15 Am. Rep. 664 ( Sup. Ct. 1873), holding "false means that which is not true, coupled with a lying intent." See, also, Abraham v. Wilson Co., 121 N.J.L. 530, 533 ( E. A. 1938). The words "false promises" are included in our false pretense statute which is intended to make criminal the false statement of an existing state of mind.
as follows: "If you find that a witness swore falsely to a material fact, you will disregard that testimony." Defendant contends that (a) unless the court had good reason to believe that a witness testified falsely and willfully for the purpose of deceiving the jury the administration of justice would not require him to charge the doctrine falsus in uno, falsus in omnibus, citing Hargrave v. Stockloss, 127 N.J.L. 262, 266 ( E. A. 1941); (b) the charge invaded the province of the jury in that it gave the jury a mandate to disregard all of the testimony of any witness who testified falsely as to any material fact, despite the fact that the doctrine is permissive rather than mandatory, citing State v. Wesler, 137 N.J.L. 311 ( Sup. Ct. 1948); (c) the instruction was prejudicially harmful as it failed to draw a distinction between testimony given by a witness contrary to fact where the witness believed the testimony to be true and a situation where the untruth was willfully told, citing Abraham v. Wilson Co., 121 N.J.L. 530, 533 ( E. A. 1939); Anthony v. Public Transit Co., 3 N.J. Misc. 1204, 1206 ( Sup. Ct. 1925) not officially reported. We are in accord with these contentions of defendant.