Gudger v. Penland

• Citation: 13 S.E. 168,108 N.C. 593
• Parties: Gudger v. Penland.
• Decision Date: 28 April 1891
• Court: United States State Supreme Court of North Carolina

13 S.E. 168

108 N.C. 593

Gudger v. Penland.

Supreme Court of North Carolina

April 28, 1891

This was an action for slander heard on demurrer at the February term, 1890, of the superior court of Buncombe county, before Philips, J. The complaint and demurrer were as follows: The plaintiff, complaining of the defendant, alleges: "(1) That he is now a good, true, and honest citizen of this state, and as such hath always conducted himself, and until the committing of the grievances hereinafter mentioned was always reputed to be a person of good fame and credit, and hath never been guilty, nor, until the committing of the said grievances, been suspected to have been guilty, of swearing falsely, or of any other crime, by means of which said premises he, (the said plaintiff,) before the committing of the said grievances, had deservedly obtained the good opinion of all of his neighbors and of all other persons to whom he is known. (2) That the said defendant, well knowing the premises, as stated in paragraph 1, but contriving and wickedly and maliciously intending to injure the plaintiff in his good fame and credit, and to bring him into public scandal, infamy, and disgrace, and to cause it to be suspected that he (the plaintiff) had been guilty of perjury and swearing falsely heretofore, to-wit, on the ___ day of January, 1890, in the county of Buncombe aforesaid, in a certain discourse which he (the said defendant) then and there had, in the presence and hearing of divers good and noted citizens of this state, concerning the plaintiff falsely and maliciously spoke and published of and concerning the plaintiff these false, scandalous, malicious, and defamatory words following; that it to say, 'he [meaning the plaintiff,] that damned old son-of-a-bitch, Dolph Gudger has sworn lies on him [meaning the said defendant] in the criminal court at Asheville, at the special term, 1889.' (3) That afterwards, to-wit, on the day and year aforesaid in the county aforesaid, in a certain other discourse which he (the said defendant) then and there had, in the presence and hearing of divers other good and worthy citizens of this state, he, (the said defendant,) further contriving and intending as aforesaid, then and there, in the presence and hearing of the said last-mentioned citizens, falsely and maliciously spoke and published of and concerning the said plaintiff these other false, scandalous, malicious, and defamatory words following; that is to say, he (meaning the plaintiff A. M. Gudger) swore to a lie in the court at Asheville, and he could prove it, and he, A. M. Gudger (meaning the plaintiff,) swore lies on him (meaning the defendant) at the court in Asheville, and he (meaning the defendant) could prove it; that the lies sworn by him (meaning the plaintiff) were in the fence case, which was an indictment tried at the November special term of the criminal court of Buncombe county, 1889. (4) That afterwards, to-wit on the day and year aforesaid, in the county aforesaid, in a certain other discourse which he (the said defendant) then and there had, in the presence and hearing of divers other good and worthy citizens of this state, he, (the said defendant,) further contriving and intending as aforesaid, then and there, in the presence and hearing of said last-mentioned citizens, falsely and maliciously spoke and published of and concerning the said plaintiff these other false, scandalous, malicious, and defamatory words following; that is to say, he, (meaning the plaintiff,) at the special term of the criminal court held for the county of Buncombe in November, 1889, swore to a God damn lie, and he could prove it, in a case then pending, in which the state was the plaintiff and C. L. Miller, Eugene Moss, William Plemmons, Sr., Dow Meadows, Zack Plemmons, Francis Hill, and William Plemmons, Jr., were defendants. (5) That afterwards, to-wit, on the day and year aforesaid, in the county aforesaid, in a certain other discourse which he (the said defendant) then and there had, in the presence and hearing of divers other good and worthy citizens of this state, he, (the said defendant,) further contriving and intending as aforesaid, then and there, in the presence and hearing of the said last-mentioned citizens, falsely and maliciously spoke and published of and concerning the said plaintiff these other false, scandalous, malicious, and defamatory words following; that is to say, he, (meaning the plaintiff, A. M. Gudger,) swore to a lie in the case of the State against C. L. Miller, Eugene Moss, William Plemmons, Sr., Dow Meadows, Zack Plemmons, Francis Hill, and William Plemmons, Jr., the case which was tried at the special term of the criminal court held for the county of Buncombe, 1889, in which case the plaintiff was sworn as a witness and testified in behalf of the defendants. (6) That before the speaking of the several false, scandalous, malicious, and defamatory words by the said defendant of and concerning the plaintiff, stated in the paragraphs hereinbefore mentioned, a certain action was depending in the criminal court of Buncombe county, wherein the state was plaintiff and C. L. Miller, Eugene Moss, William Plemmons, Sr., Dow Meadows, Zack Plemmons, Francis Hill, and William Plemmons, Jr., were defendants, in which said action, before the speaking and publishing of the same words, to-wit, at the special November term, 1889, the said defendants were tried and convicted, that is to say, C. L. Miller, Eugene Moss, Dow Meadows, Zack Plemmons, and William Plemmons, Jr., for destroying the fence of the said defendant, A. M. Penland, on the trial of which said case he (the said plaintiff) was duly sworn and did take his corporal oath upon the Holy Gospels of God before the said court, the said court then and there having sufficient and competent power and authority to administer an oath to the said plaintiff in that behalf, and the said plaintiff, being so sworn, and having so taken his corporal oath, was then and there examined and did give his evidence as a witness in said case aforesaid; and the said plaintiff further saith that the said defendant, well knowing the premises, but greatly envying the reputation of the said plaintiff, and contriving and intending to injure the plaintiff in his aforesaid good name, fame, and character, and bring him into public scandal, infamy, and disgrace with all his neighbors and other good citizens to whom he was known, and to cause it to be suspected and believed by those neighbors and citizens that he (the plaintiff) had been and was guilty of perjury, and to subject him to the pains and penalties of the law, and also to vex, harass, and ruin him, the said plaintiff, on the day and year aforesaid, in a certain discourse...