Atteberry v. Powell

• Decision Date: 31 January 1860
• Citation: 29 Mo. 429
• Parties: ATTEBERRY, Defendant in Error, v. POWELL, Plaintiff in Error.
• Court: Missouri Supreme Court

29 Mo. 429

ATTEBERRY, Defendant in Error,

v.POWELL, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1860.

1. Though an answer to a petition may contain different defences separately stated, they must be consistent defences; in an action for slanderous words, the defendant cannot be allowed in the same answer to deny and also to justify the speaking of the words charged. (R. C. 1855, p. 1233, § 14.)

2. An answer in an action of slander justifying the speaking must confess the speaking; an answer merely stating that the words spoken are true is not sufficient as a justification; it should state the facts constituting the crime or offence imputed so that an issue of either law or fact may be found.

3. Where the allegations or denials of a pleading are so indefinite or uncertain that the precise nature of the charge or denial is not apparent, or where they fail in any other respect to conform to the requirements of the law, the court may require the pleading to be made definite and certain, and otherwise to conform to the law, by amendment. (R. C. 1855, p. 1236, § 31.)

4. Where the petition, in an action of slander for charging the plaintiff with perjury, is defective, in that it does not state how the alleged perjury was committed, the defect will be aided by a plea of justification setting forth the circumstances under which the alleged false oath was taken.

5. In an action for speaking slanderous words, it is calculated to mislead the jury to refer it to them to determine whether the defendant “in substance” spoke or published the words charged, without explaining the meaning that the law would attach to that expression in connection with the proof of the slander charged.

Error to Dallas Circuit Court.

This was an action for the speaking of slanderous words. The petition contains two counts. In the first count it was charged that the defendant on, &c., at, & c., “in a certain conversation with one Absalom Austin, and in the presence and hearing of divers other good citizens of, &c., in a certain conversation with said Absalom Austin of and concerning the said plaintiff George W. Atteberry, and of and concerning the character of said plaintiff for honesty and integrity, and of and concerning an affidavit and oath which plaintiff before that time had made and given before the county court of said county at its May term, 1857, in the matter of William F. Tinsley's right to enter or purchase certain public land, to-wit, forty acres of land in said county, maliciously spoke the following malicious, false and slanderous words of and concerning the character of plaintiff, and of and concerning the aforesaid oath, to-wit, ‘they,’ meaning plaintiff Atteberry and Tinsley, ‘have got my board down; they have worked me out of a piece of land that I can prove that I claimed by twenty persons; I don't know that I can prove any claim on that particular piece that Tinsley got without getting some person to swear as they did for Tinsley;’ thereupon being asked who swore for him, meaning Tinsley, he (defendant) said ‘Atteberry,’ meaning the oath which plaintiff had as aforesaid made of and concerning the said entry or purchase aforesaid, and meaning thereby then and there, and was so understood by him the said Austin and those present, that plaintiff had sworn a lie, and had been guilty of the crime of perjury in the aforesaid oath concerning said entry or right of purchase proved up as aforesaid by him, the said plaintiff; by reason of which,” &c.

In the second count it was charged that the defendant “on, &c., in the presence and hearing of Wesley Austin, and divers other citizens of Dallas county, in a conversation with said Wesley Austin of and concerning plaintiff, and of and concerning the oath aforesaid, which he, the said plaintiff, had made before the county court of said county of Dallas (said oath being made and taken by said court under the authority of law in deciding upon the right of said Tinsley to enter or purchase forty acres of land in said county), did speak, utter and publish the following false and slanderous words; “they have taken a piece of my land by false swearing;' he (defendant) thereby meaning that plaintiff, in making said oath, had sworn false, and had been guilty of the crime of perjury; and he then, said defendant, was thereby then and there so understood to mean that plaintiff had been guilty of the crime of perjury by the said Wesley Austin and those persons present; wherefore and by reason of which,” &c.

A demurrer to this petition having been overruled, the defendant filed the following answer: “Defendant comes and for answer to the first count in said petition says, he did not speak or publish the supposed false and slanderous words of or concerning plaintiff, or either of them, as charged in said first count of said petition; nor did he mean by any thing he said of or concerning plaintiff that he had been guilty of the crime of perjury. Defendant further answers and says that he did not speak or publish the false and slanderous words of and concerning the plaintiff in the second count of said petition specified as therein plaintiff has alleged, or any or either of them; nor did he mean by any thing he did say that plaintiff had been guilty of perjury.

“Defendant further answers and says plaintiff ought not to have or maintain said action against him, because he says that at the time in said petition mentioned when the plaintiff made the supposed oath, affidavit before said county court of Dallas county, he, the said plaintiff, then and there made oath and stated before said county court that no other person except said Tinsley had any claim on said forty acres of land mentioned in said petition, whereas, in truth and in fact, defendant then and long before that time had a claim on said forty acres of land, whereof plaintiff was then well aware, which is the same affidavit and oath mentioned in both counts of said petition, and not other or different. And defendant says that plaintiff did swear and testify in said affidavit and oath falsely, knowingly, wilfully and corruptly, in manner aforesaid; and so defendant says it is true, as stated in the first count of said petition, that plaintiff had sworn falsely in manner aforesaid; and that it is true, as stated in said second count in said petition, that plaintiff had sworn falsely in manner aforesaid; all of which he is ready to verify.”

It is deemed unnecessary to set forth the facts in evidence.

Hendrick, Johnson & Ballou, for plaintiff in error.

I. The petition is insufficient. The demurrer should have been sustained. It does...