Harbison v. Shook
| Citation | 41 Ill. 141,1866 WL 4553 |
| Parties | JESSE S. HARBISONv.DYKEMAN SHOOK. |
| Decision Date | 30 April 1866 |
| Court | Supreme Court of Illinois |
WRIT OF ERROR to the Circuit Court of Rock Island county; the HON. IRA O. WILKINSON, Judge, presiding.
This was an action on the case for slander, brought by Dykeman Shook, in the Henderson Circuit Court, against Jesse S. Harbison. The declaration contained a number of counts, charging that defendant had accused plaintiff of having committed perjury, while others averred that he had charged him with having sworn falsely.
To the declaration, the defendant pleaded not guilty, and also a plea of justification. In the latter he avers that plaintiff did wickedly, willfully, corruptly swear falsely to a certain matter in a suit, and thereby committed perjury. This plea gives the particulars of time, place and circumstance, and is to the whole declaration. To it there was a replication, and issues were formed.
A trial was had by the court and a jury, in the Rock Island Circuit Court, to which the cause had been removed by a change of venue. There were a number of witnesses examined on the trial, and the speaking of slanderous language was proved, but most of it was variant from that set out in the declaration, but a portion was as laid in a part of the counts.
On the trial it was agreed by counsel that the suit of G. S. Munduff against Harbison, was pending in the Henderson Circuit Court, and that plaintiff was duly sworn and testified as a witness in that case, and if it appeared that he was called as a witness by defendant, no advantage should be taken of the averment in the plea of justification that he was called by the plaintiff.
After hearing the evidence and receiving the instructions of the court, the jury found the issues for plaintiff and assessed the damages at $768.08. Defendant thereupon entered a motion for a new trial, which the court overruled, and rendered a judgment on the verdict, to reverse which this writ of error is prosecuted.
Mr. J. W. DAVIDSON, for the plaintiff in error.
Mr. C. BLANCHARD, for the defendant in error.
This was an action on the case for slander, brought by Dykeman Shook, in the Henderson Circuit Court, against Jesse S. Harbison. The venue was afterward changed to Rock Island county, where a trial was had by the court and a jury, which resulted in a verdict in favor of plaintiff for $767.08; a motion for a new trial was entered and overruled by the court, and a judgment rendered on the verdict.
The declaration contains nine counts, in which it is averred, that plaintiff in error, falsely, wickedly and maliciously spoke of the plaintiff below, that, in a certain trial pending in the Henderson Circuit Court, he had sworn falsely. The language is differently stated in the various counts; the first five of which aver that plaintiff in error intended to charge defendant in error with having committed willful and corrupt perjury. The last four aver that he intended to charge him with swearing falsely. Plaintiff in error interposed the plea of the general issue, and a plea of justification, upon which the trial was had.
It is insisted, that all of the counts of the declaration, are framed under the common law, and that it was incumbent on defendant in error to prove the materiality of the evidence alleged to have been false. This may be true under the first five counts as they proceed for a common law slander, but as to the other counts, they seem to have been framed under our statute, and consequently are not governed by the common law rule, that to establish a slander it is necessary that the evidence charged to be false was material to the issue. The statute declares, that it shall be slander for one person to charge another with swearing falsely, or of having sworn falsely. And under the statute it is held to be unnecessary to aver or prove, that the evidence or oath charged to be false was material, or that the oath was in a judicial proceeding. Sanford v. Gaddis, 13 Ill. 329.
It is insisted, that there was a variance between the averments in the declaration that defendant in error testified in a case in which G. S. Munduff was plaintiff, and James Harbison was defendant, and the evidence which shows that both James and William B. Harbison were defendants. If such a variance exists, it was waived by the stipulation of counsel, which is embodied in the bill of exceptions, which admits the suit pending, as averred in the declaration.
It is likewise insisted, that the court erred in permitting defendant in error to introduce evidence of his good character, when there had been none given to impeach it. In slander, the rule is, that the plaintiff has no right to introduce evidence of character until it is attacked by the defendant. If the defendant simply files the general issue, and refrains from giving evidence of the previous bad character of the plaintiff, in mitigation of damages, under the current of the authorities, plaintiff could...
To continue reading
Request your trial
-
Franklin Union, No. 4 v. People
...removes every reasonable doubt of guilt. Crandall v. Dawson, 1 Gilman, 556;McConnel v. Delaware Mutual Ins. Co., 18 Ill. 228;Harbison v. Shook, 41 Ill. 141;Sprague v. Dodge, 48 Ill. 142, 95 Am. Dec. 523;Germania Fire Ins. Co. v. Klewer, 129 Ill. 599, 22 N. E. 489.’ An order punishing Frankl......
-
Continental Development Corp., Inc. v. Vines
... ... McMahan, 215 Or. 38, 332 P.2d 84 (1958); Roth v. Drainage Improvement District No. 5 of Clark County, 64 Wash.2d 586, 392 P.2d 1012 (1964); Harbison v. Shook, 41 Ill. 141 (1866). In Harbison a variance between the pleading and proof was held to have been waived by ... ...
- Rost v. F.H. Noble & Co.
-
Ward v. Ares
...merely in passing. Since evidence of additional publications is material for the purpose of aggravating the damages (Harbison v. Shook, 41 Ill. 141; Stowell v. Beagle, 79 Ill. 525; Hatch v. Potter, 2 Gilman [Ill.] 725, 43 Am.Dec. 88; Leonard v. Pope, 27 Mich. 145; Fowler v. Gilbert, 38 Mich......