Niehoff v. Sahagian

• Decision Date: 14 January 1954
• Citation: 149 Me. 396,103 A.2d 211
• Parties: NIEHOFF v. SAHAGIAN.
• Court: Maine Supreme Court

Page 211

103 A.2d 211

149 Me. 396

NIEHOFF v. SAHAGIAN.

Supreme Judicial Court of Maine.

Jan. 14, 1954.

Dubord & Dubord, Waterville, for plaintiff.

Goodspeed & Goodspeed, Augusta, Richard S. Chapman, Portland, for defendant.

Before MERRILL, C. J., and THAXTER, FELLOWS, WILLIAMSON, and WEBBER, JJ.

MERRILL, Chief Justice.

On exceptions. This is an action for slander. The amended declaration contains two counts. The first count alleges that the defendant slandered the plaintiff by falsely and maliciously accusing him of the crime of subornation of perjury by speaking of and concerning the plaintiff the following words:

'I had not wanted to admit on the stand in Portland, that I had committed a crime, since I had not committed any. However, I was urged to do so by Bird and Assistant Attorney General William H. Niehoff. Bird and Niehoff told me that if I did not testify to a crime, then no crime could be proved against Papalos who would then fail to be convicted. So I went ahead and said on the witness stand the I had, in fact, committed a crime, after Bird and Niehoff had urged me to do so.'

The second count alleges that the defendant did speak and publish of and concerning the plaintiff in his capacity as an attorney-at-law the same words above set forth and contains the further allegation that by means of said statements the defendant did falsely accuse the plaintiff of having committed the heinous crime of subornation of perjury.

In neither count is there a claim for special damages nor is there any allegation that the plaintiff suffered special damages because of the alleged slander.

The defendant filed a general demurrer to each count. These demurrers were sustained by the presiding Justice and it is upon exceptions to these rulings of said Justice that the case is now before this Court.

Perjury and subornation of perjury are felonies and are defined in R.S.1944, c. 122, § 1 as follows:

'Whoever, when required to tell the truth on oath or affirmation lawfully administered, wilfully and corruptly swears or affirms falsely to a material matter, in a proceeding before any court, tribunal, or officer created by law, or in relation to which an oath or affirmation is authorized by law, is guilty of perjury; and whoever procures another to commit perjury is guilty of subornation of perjury'.

In order to constitute subornation of perjury 'Both the suborner and the suborned must, as elements of the offence, know the testimony to be false, and the former must be aware that the latter so knows it, otherwise there is not the needful corruption.' 2 Bishop's New Criminal Law, 690, § 1197, a. 2.

In order to be guilty of subornation of perjury it is not only necessary that the party suborned actually commit perjury but it is also necessary that the suborner knows that the testimony to be given will be false and that the one giving the same 'will willfully testify to a fact knowing it to be false.' 41 Am.Jur. Page 41, § 74.

As said in 70 C.J.S., Perjury, § 79, pages 549 and 550:

'It is essential to the offense of subornation of perjury that perjury, in all of its elements, shall have been committed by the suborned witness. * * *

'In order to constitute subornation of perjury, it is essential that the suborner should have known or believed that the testimony would be false, that he should have known that the witness would testify willfully and corruptly with knowledge of its falsity, and that he should have knowingly and willfully induced or procured the witness to give such false testimony.'

As said by the Massachusetts court with respect to the conduct of a defendant charged with subornation of perjury, in Commonwealth v. Douglass, 5 Metc. 241, 244:

'The defendant might know, or believe--for he could not know with certainty--that the witness whom he called would testify as she did; and he might know that her testimony would be false; but if he did not know that she would willfully restify to a fact, knowing it to be false, he could not be convicted of the crime charged. If he did not know or believe that the witness intended to commit the crime of perjury, he could not be guilty of the crime of suborning her. To constitute perjury the witness must willfully testify falsely, knowing the testimony given to be false. 1 Hawk. c. 69, § 2. Bac.Ab.Perjury, A. 2 Russell on Crimes, (1st ed.) 1753. A witness, by mistake or defect of memory, may testify untruly without being guilty of perjury or any other crime. * * * To constitute subornation of perjury, the party charged must have procured the commission of the perjury, by inciting, instigating, or persuading the guilty party to commit the crime. The calling of a witness to testify, with the knowledge or belief that he will voluntarily testify falsely, is certainly not sufficient to constitute the crime of subornation of perjury.'

See also Archbold's Criminal Pleading and Evidence, 4th American Edition, Page 545, May's Criminal Law, Page 130, § 153.

It is essential to the crime of subornation of perjury that the suborner procured another to give testimony known by him and such other to be false and that such false testimony was in fact given. See 2 Wharton's Criminal Procedure, 10th Edition, 1516, § 1071.

As said in 2 Wharton's Criminal Law, 1844, § 1595.

'To constitute subornation of perjury, which is an offense at common law, the party charged must procure the commission of the perjury, by inciting, instigating, or persuading the witness to commit the crime. Perjury must have been actually committed, and this must appear in the indictment. The suborner must be aware of the intended corruptness on part of the person suborned. Thus though a party, who is charged with subornation of perjury, knew that the testimony of a witness whom he called would be false, yet if he did not know that the witness would wilfully testify to a fact, knowing it to be false, he cannot be convicted of the crime charged.'

Although it may not be necessary to constitute misconduct on the part of an attorney who procures a witness to testify to facts that are not true that the attorney be guilty of subornation of perjury in its technical sense, yet to constitute misconduct on his part he must at least act corruptly and either know of the falsity of the testimony or other facts evidencing his bad faith in procuring the testimony to be given. The only fact stated in either count that would indicate the Niehoff acted corruptly in his office as an attorney-at-law is the statement in the inducement that he knew that Sahagian was not guilty of the offense the commission of which he was urged to testify, of which later.

The real issues between the parties are whether or not the language above set forth when spoken of and concerning the plaintiff by the defendant charged the plaintiff with having committed the crime of subornation of perjury, and whether or not it charged him with misconduct in his office as an attorney at law.

It is the position of the defendant that there is nothing in the language itself, which, standing alone, can be interpreted as a statement by the defendant that the plaintiff knew that the testimony to be given and actually given by Sahagian would be false.

The defendant's interpretation of the words standing alone is the correct one. This, however, is not necessarily fatal. Words perfectly innocent in and of themselves when spoken under certain circumstances may have an entirely different meaning. By inducement, colloquium and innuendo a plaintiff may show that words innocent in and of themselves interpreted in the light of the circumstances under which and in reference to which they were uttered or written constitute an accusation of crime or misconduct in his profession.

This court has so many times and so recently stated the essential elements of defamation by libel and by slander that it would be superfluous to repeat them in extenso. We said in Barnes v. Trundy, 31 Me. 321, 323:

'Certain doctrines respecting the maintenance of actions for slanderous words spoken, may be regarded as so fully established as to preclude further debate or controversy.

'Words in themselves actionable must charge some punishable offence, impute some disgraceful disease, or be spoken of the person in relation to some profession, occupation, or official station in which he was employed.

'Words in themselves not actionable may be the foundation of an action by reason of some special damage occasioned by them.'

See, also, especially with respect to charges with respect to defamation of one in the conduct of his profession, Orr v. Skofield, 56 Me. 483, Buck v. Hersey, 31 Me. 558, and Pattangall v. Mooers, 113 Me. 412, 94 A. 561, L.R.A.1918E, 14.

Furthermore, words innocent in and of themselves may be actionable because of the surrounding circumstances under which and with relation to which they are spoken. In other words, in this manner by the use of words innocent in and of themselves the speaker may accuse another of having committed a crime, or impute to him some matter in relation to his particular trade, vocation or profession which, if true, would render him unworthy of employment.

Unless the words standing alone in and of themselves, if true, are sufficient to charge the plaintiff with the commission of crime and unless they are necessarily inconsistent with the plaintiff's innocence of the crime alleged to have been charged thereby, the words are not actionable per se as charging the plaintiff with such crime. Likewise, the same general principle applies to allegations with respect to and of the plaintiff's conduct in relation to some matter relating to his particular trade, profession or vocation. Unless the words standing alone in and of themselves, if true, are sufficient to impute to him some matter in connection with his trade, profession or vocation which would render him unworthy of employment, and unless, if true, they are necessarily inconsistent with his...