Gordon v. Gordon
| Decision Date | 31 January 1850 |
| Citation | 13 Mo. 215 |
| Parties | GORDON v. GORDON. |
| Court | Missouri Supreme Court |
BALLOU, ABELL and STRINGFELLOW, for Appellant. 1. On the plea of not guilty, the plaintiff must in this case, where the words are not in themselves actionable, not only prove the words as laid, but that they were spoken with reference to testimony given by plaintiff, before the grand jury of Polk county, in the investigation of a matter cognizable by them; and that the testimony so given was material to the determination of the matter in question. 2 Johns. 10; 2 Johns. 344; 14 Wend. 120; 1 Wend. 475; 5 Mo. R. 21; 1 Chitty's Pl. 400; 1 Denio, 208; Harris v. Woods, 9 Mo. R. 113; 12 Wend. 500; 8 Mo. R. 512. 2. There was no evidence to show that the grand jury spoken of by the witness, was a grand jury for Polk county, nor that such grand jury was ever sworn; nor that the charge against Hendrickson was for an offense cognizable by the grand jury; nor that the testimony by plaintiff in error, referred to by defendant as false, was material to the investigation.
WINSTON, for Defendant, cited: 10 Mo. R. 516.
This was, on the trial, an action on the case for words spoken; no testimony having been given upon the count for libel. The count for verbal slander charged the defendant with having said that the plaintiff had “sworn a lie,” averring somewhat loosely in the colloquium and innuendo, that the charge was made and understood with reference to certain testimony given by the plaintiff ““on points material” to a charge which had theretofore undergone investigation before the grand jury of Polk county, and was intended and understood to impute to the plaintiff the crime of perjury.
The defendant having pleaded the general issue, and also a special justification, it was proven upon the issues thereupon joined, that the defendant had said of the plaintiff, that if he (plaintiff) had sworn what he (defendant) had heard he had, he (plaintiff) had sworn a lie; and upon being answered by the grand juror with whom he was conversing, that he (plaintiff) had sworn pretty much as he (defendant) had heard and just related, the defendant called the attention of others who were near by, and pronounced the charge direct that the plaintiff had “sworn to a lie.” There was other testimony designed to show that the defendant was understood by others present as having made the charge hypothetically, or “conditionally” only, and this was the substance of all the ovidence.
The court instructed the jury to the effect, that if, after taking into consideration everything which was said by the defendant at the time of speaking the words, they believed they were spoken hypothetically, or were not designed to charge the plaintiff with perjury, they would find for the defendant; but that if they believed otherwise, and that they were spoken with reference to the testimony given by the plaintiff before the grand jury, touching a prosecution pending before that tribunal, they would find for the plaintiff. No objection was made to the instructions, as indeed none could...
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