Harris v. Woody

• Decision Date: 31 January 1845
• Citation: 9 Mo. 113
• Parties: HARRIS v. WOODY.
• Court: Missouri Supreme Court

9 Mo. 113

HARRIS

v.WOODY.

Supreme Court of Missouri.

January Term, 1845.

APPEAL FROM GREENE CIRCUIT COURT.

PHELPS, for Appellant. 1. The court erred in instructing the jury. The instructions directed the jury to find for the defendant. Hughes v. Ellison, 5 Mo. R. 112. Error in court to instruct that the evidence is not sufficient. Labeaume v. Dodier et al. 1 Mo. R. 618. Error to give an instruction which takes the case from the jury. Morton v. Reeds, 6 Mo. R. 64; Berry v. Dryden, 7 Mo. R. 324. 2. That upon the evidence, plaintiff was entitled to recover. The words as laid in the declaration were proven; and the obvious import of the language is, to impute to plaintiff the crime of perjury. The declaration avers the words to have been spoken of the testimony given by plaintiff in a trial between Maryfield & Gwinne. The testimony that the words were spoken of the testimony in a trial between Maryfield & Gwinne, or Woody & Gwinne. This is no variance. Hibler v. Servoss, 6 Mo. R. 24. That the court erred in entertaining a motion to instruct the jury, before defendant had announced he had closed his case.

WINSTON. for Appellee. The points relied on by the defendant to sustain the judgment below are: 1. That as the words proved to have been spoken were not actionable of themselves, but could only be made so by referring to some judicial proceedings, in which the plaintiff had given evidence, it was necessary not only to prove that the defendant had spoken the words in reference to the plaintiff's swearing, but that the plaintiff's swearing had been about a matter material to the issue. See 20 Johns. R. 344: 12 Wendell, 500, 50; 14 Wendell, 120; 1 Wendell, 476; 1 Caine's R. 347; 13 Johns. R. 81, 48, 68; 2 Johns. R. 10; 6 Johns. R. 82. 2. The first count in the declaration, was defective and had, because it did not state, that on the trial of the cause, about which the words were spoken, the plaintiff had given evidence material to the issue; and as the evidence given, was only applicable to that count, the court did right in excluding it from the jury; because if the jury had given a verdict for the plaintiff on that count, the judgment ought to have been arrested. 3. That the words charged in the first count, and proved on the trial, were not actionable per se, I presume is too clear for argument.

SCOTT, J.

This was an action of slander in the Greene Circuit Court instituted by Harris against Woody, in which Woody obtained judgment, from which Harris has appealed to this court. The declaration contained three counts: the first alleges that there was a suit pending in the justice's court, in which the plaintiff was sworn as a witness; and that the defendant, speaking of the testimony given by the plaintiff on the trial of the said cause, said he had sworn a lie, or a damned lie, and could prove it. There is no allegation in this count, that the matter sworn to by the plaintiff on the trial, was material to the issue. The other counts charge, that the defendant said that the plaintiff had committed perjury. There was no evidence in support of these counts. On the trial in the Circuit Court, the words charged in the first count were proved to have been spoken by the defendant, but there was no evidence of the materiality of the plaintiff's testimony to the issue tried in the justice's court, nor was there any evidence of any trial having ever been had in the justice's court. After the plaintiff had closed his case, the defendant moved the court to instruct the jury, that admitting the evidence given by the plaintiff to be true, yet he cannot recover, which instruction the court gave.

It is well settled, that to charge a person with swearing...