Andrew Shroyer v. Henry Miller.

• Decision Date: 31 January 1869
• Citation: 3 W.Va. 158
• Court: West Virginia Supreme Court
• Parties: Andrew Shroyer v. Henry Miller.

3 W.Va. 158

Andrew Shroyer

v.Henry Miller.

Supreme Court of Appeals of West Virginia.

January Term, 1869.

1. To constitute a good count for slander at common law upon a charge of having committed an offense, it is held that the charge of the defendant, if true, must amount to such an offense or crime as would subject tho plaintiff to the punishment annexed to it.

2. It is not indispensable in an action for slander, at common law, upon a

charge of perjury to set out and charge all the facts constituting such offense with the same technical strictness as would be required in an indictment for the same offense.

3. It is not error on the trial of an action of slander to permit tho plaintiff to introduce evidence to prove his good character where the same has not been assailed by the defendant, or evidence introduced by him to impeach it.

4. The fact that the presumption of law is in favor of the plaintiil"s good character, and, therefore, no good could flow from permitting him thus to prove it, does not avail the defendant in the appellate court as he cannot be heard to allege error here unless it appears that he is aggrieved by it.

The declaration in this case was filed in the clerk's office of the circuit court of Taylor county, at July rules, 1864. It averred that a certain suit was pending before James Conn, a justice of Taylor county, before the committing of the grievances, &c, and had been by the justice tried; that on said trial, wherein Andrew Shroyer was plaintiff and John F. Smith was defendant, the plaintiff Miller had been sworn as a witness; that the defendant Shroyer, envying his good name, &c, did, on a certain day, in the hearing, &c., falsely and maliciously speak and publish, concerning the said suit and the testimony of the plaintiff so given by him as a witness, on the trial of the suit hefore the justice, the following words, &c, thereby meaning that the plaintiff in giving in his evidence as such witness on such trial had committed wilful and corrupt perjury.

The second count was for words tending to a breach of the peace, under the statute.

The defendant demurred to the declaration, which being overruled he pleaded not guilty.

On the trial had in May, 1866, the defendant excepted to the ruling of the court in permitting the plaintiff to introduce testimony to prove his good character, the same not having been assailed or any evidence introduced by the defendant to impeach it.

The jury found a verdict of 225 dollars for the plaintiff.

The defendant obtained a supersedeas from this court.

Richardson for the plaintiff in error.

Raymond and Bogyess for the defendant in error.

Berkshire, j. The record in this case discloses but two questions for our consideration, both of which are assigned in the petition for the supersedeas.

The first is as to the sufficiency of the first count in the declaration. It is a common law count for defamation upon a charge of perjury.

It was insisted in the argument here, that the count is fatally defective for omitting to aver that the matters deposed to by the plaintiff, on the trial of the suit therein referred to, were material to the proceedings then pending and being tried before the justice, and that for this reason the demurrer to this count should have been sustained.

To constitute a good count for slander at common law, upon a charge of having committed an offence, it is held that the charge of the defendant, if true, must amount to such an offence or crime as would subject the plaintiff to the punishment annexed to it. Looking at the whole of this count, the introductory part of it, the colloquium,.the words spoken and the inuendos, I think it amounts to a charge of perjury on the part of the defendant, and that all the facts necessary to be averred in such a case are set forth with sufficient fullness and accuracy to constitute a good count. I am not aware that it has ever been held, in an action for slander at...