## Facts

- Stephen Knihal operated a tavern in South Omaha, Nebraska, selling beer and liquor by the drink.
- On the evening of January 17, 1947, Martin Urn was in the bar, and another patron, Shymkawicz, entered and was intoxicated.
- A disagreement arose between Knihal and Shymkawicz (including an argument about change), and witness accounts differed about the events that followed.
- During the confrontation, Knihal obtained a double-barreled shotgun kept in the tavern, and a shot was fired that killed Urn.
- A police officer testified that after the shooting Knihal said, “I shot the wrong man.”
- Knihal was charged by information with second-degree murder, pleaded not guilty, and was tried to a jury.
- The jury found Knihal guilty of manslaughter; the trial court denied his motion for new trial and sentenced him to three years’ imprisonment.
- At trial, the State offered two photographs taken inside the bar about one hour after the shooting.
- The photographer testified only that he took the photographs in the tavern about an hour after the shooting and that Knihal appeared in one of them.
- No witness testified that the photos correctly represented conditions relevant to the shooting, or that the photos were being used to explain or illustrate any particular witness’s testimony.
- One photo showed a man standing with his back to the camera and a man in a white jacket facing the camera holding a shotgun; the other showed a man lying on the floor.
- Knihal appealed to the Nebraska Supreme Court by petition in error.

## Issues

1. Whether photographs offered to prove what occurred may be admitted as original or substantive evidence when they are not verified by a witness whose testimony they explain or illustrate.
2. Whether it was prejudicial error to refuse a requested instruction based on the maxim “falsus in uno, falsus in omnibus” (who speaks falsely on one point will speak falsely upon all).
3. Whether a credibility instruction telling jurors they had “no right to reject” testimony “without good reason,” and should not reject it unless irreconcilable with other testimony found true, was erroneous in a criminal case.

## Decision

- The Nebraska Supreme Court reversed the judgment and remanded for a new trial.
- The court held the photographs were improperly admitted because, as offered, they functioned as original or substantive proof of what occurred without verification by a witness whose testimony they served to explain or illustrate.
- The court held it was not prejudicial error to refuse an instruction based on the “falsus in uno, falsus in omnibus” maxim; the maxim concerns weight and credibility and does not require a special instruction in that form.
- The court held the given credibility instruction stating the jury had “no right to reject” testimony without “good reason” (and only if irreconcilable with other testimony) was erroneous because it improperly restricted the jury’s role in judging credibility.
- The court also restated that alleged error cannot be based on testimony admitted without objection at trial.
- The court overruled prior Nebraska decisions to the extent they were inconsistent with its treatment of the falsus-in-uno instruction issue.

## Legal Principles

- A photograph offered “as proving a thing to be as represented in the picture” is not admissible as original or substantive evidence; it must be verified by a witness or witnesses whose testimony the photograph explains or illustrates.
- Authentication of a photograph requires more than proof of when and where it was taken if it is offered to prove disputed facts; the photograph must be tied to competent testimony establishing that it accurately depicts what it is offered to show.
- The maxim “who speaks falsely on one point will speak falsely upon all” concerns the weight of evidence and credibility; a trial court’s failure or refusal to instruct on that maxim is not, by itself, prejudicial error.
- In a criminal case, an instruction that jurors have “no right” to reject testimony without “good reason,” and should not do so unless it is irreconcilable with other testimony found true, is erroneous because it interferes with the jury’s authority to assess credibility and accept or reject testimony.
- When evidence is admitted without objection, a party generally cannot assign its admission as error on appeal.

## Conclusion

The Nebraska Supreme Court set aside Knihal’s manslaughter conviction and ordered a new trial because the State’s photographs were admitted without the verification required when photographs are used to prove facts, and because the jury was given an improper credibility instruction that limited its freedom to reject testimony; the court also clarified that a falsus-in-uno instruction is not required and reaffirmed that unobjected-to evidence cannot later be challenged as error.


Knihal v. State, 36 N.W.2d 109 (1949)