Dungan v. State

• Decision Date: 21 December 1911
• Citation: 2 Ala.App. 235,57 So. 117
• Parties: DUNGAN v. STATE.
• Court: Alabama Court of Appeals

57 So. 117

2 Ala.App. 235

DUNGAN v. STATE.

Court of Appeals of Alabama

December 21, 1911

Appeal from Clarke County Court; Thomas W. Davis, Judge.

John D Dungan was convicted of defamation, and he appeals. Affirmed.

The affidavit was as follows, omitting the formal charging part "Personally appeared T. W. Walker, who, first being duly sworn, deposeth and says that he has probable cause for believing, and does believe, that within 12 months before the commencement of this prosecution, in said county, John D Dungan did falsely and maliciously speak of and concerning T W. Walker, in the presence of J. D. Bedwell and W. E. Estis, charging him with having committed perjury, in substance as follows, to wit: That the oath of said T. W. Walker had been impeached, and was worth nothing in the courts of Clarke county," etc. The bill of exceptions shows that the demurrer to this application was stricken on motion of the solicitor, for the reason that same was not filed at the first term of the court, at which the case was tried. The evidence tended to support the charge made in the affidavit. The evidence for the defendant tended to show that he asked the question if the witnesses knew if Walker's oath had ever been impeached, but did not state it as a fact that it had been. In its oral charge the court defined slander or defamation as anything which tends to blacken or injure a man's character or reputation. Charge B is as follows: "I charge you, gentlemen of the jury, that unless you believe that the words imputed to the defendant charged the said T. W. Walker with the commission of perjury, you must find the defendant not guilty."

Travis J. Bedsole, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

Even had it been the duty of the court to pass upon the demurrers that were stricken, the defendant's rights were not impaired, as the demurrers were not well taken and must have been overruled.

The statement of facts set forth in the affidavit are sufficient to apprise the defendant, and from which to determine certainly the offense charged. The affidavit charges the defendant with having spoken falsely and maliciously of affiant imputing to him the commission of the offense of perjury, a felony involving moral turpitude. Code 1907, § 7340; Haley v. State, 63 Ala. 89. The statement in the affidavit "that the oath of said T. W. Walker had been impeached and was worth nothing in the courts of Clarke county" is an assertion imputing false swearing, and presumptively imports the commission of the offense of perjury. Code, § 3747. The evidence was sufficient to authorize a conviction, and there was no error in overruling the defendant's motion to exclude the evidence and direct a verdict.

Charge B...