Berry v. Massey
| Decision Date | 30 December 1885 |
| Docket Number | 12,103 |
| Parties | Berry v. Massey |
| Court | Indiana Supreme Court |
From the Sullivan Circuit Court.
Judgment reversed.
W. S Maple, J. S. Bays, S. C. Coulson, J. T. Beasley and A. B Williams, for appellant.
J. C Briggs, J. T. Hays and H. J. Hays, for appellee.
The issue upon which this case went to the jury was formed upon the complaint of the appellant and the general denial addressed to it by the appellee. The complaint alleges that the appellee slandered the appellant by charging that he swore to a lie while testifying as a witness in the case of the Town of Merom against Henry H. Harper.
On the trial the appellee was permitted to prove what the appellant testified to as a witness on the trial of the case referred to in the complaint. The appellant's counsel contend that this was error, because the general denial did not entitle the appellee to prove matters in justification. The counsel of the appellee assert that there was no error, for the reason that the evidence was competent as tending to prove that, under the circumstances known to the persons to whom the alleged slanderous words were spoken, no charge of perjury was made or intended.
This evidence was competent. Our reason for this conclusion is, that the evidence shows the character of the transaction to which the alleged slanderous words referred, and it was proper to submit it to the jury for the purpose of enabling them to determine whether the witnesses who heard these words understood them to import a charge of perjury. Where the persons who hear a charge made against another know that a particular transaction is referred to, and know, also, that the transaction was not such as constituted a crime, no action for slander can be maintained. Hotchkiss v. Olmstead, 37 Ind. 74; Carmichael v. Shiel, 21 Ind. 66; Ausman v. Veal, 10 Ind. 355; Abrams v. Smith, 8 Blackf. 95; Towns. Slander, sections 137, 160; Odgers Libel and Slander, 109.
It is essential that the defendant should affirmatively show that the persons who heard the words spoken by him knew of the transaction to which the words referred. Williams v. Miner, 18 Conn. 464; Dempsey v. Paige, 4 E. D. Smith, 218; Van Akin v. Caler, 48 Barb. 58; Stone v. Clark, 21 Pick. 51. But, while this is an essential element of the defence, still the court can not exclude the evidence if there is any direct testimony or any circumstantial evidence whatever tending to show that the persons who heard the alleged slanderous words had knowledge of the matter to which the words had reference, and in this instance there was evidence tending to show that some, at least, of the hearers did have such knowledge.
The fourth instruction given upon the request of the appellee is radically wrong. It reads thus:
"Or if you find from the evidence that plaintiff Berry did testify in substance as aforesaid, and that after such testimony the defendant did speak the words charged in the complaint, or any set of them, of and concerning the plaintiff, and you further find that the facts and circumstances given by the defendant in connection with the speaking of such words show that the words had reference to plaintiff's said testimony and the correction thereof about said survey, and about said Harless' connection with said survey, and about his afterwards...
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