Herst v. Borbidge

• Decision Date: 20 January 1868
• Citation: 57 Pa. 62
• Parties: Herst <I>versus</I> Borbidge.
• Court: Pennsylvania Supreme Court

Page 62

57 Pa. 62

Herst versus Borbidge.

Supreme Court of Pennsylvania.

January 6, 1868.

January 20, 1868.

January 6th 1868.

Before THOMPSON, C. J., STRONG, READ, AGNEW and SHARSWOOD, JJ.

Certificate from Nisi Prius.

C. Guillou, for plaintiff in error, referred to Dottarer v. Bushey, 4 Harris 204; Andres v. Koppenheafer, 3 S. & R. 255; Shaffer v. Kintzer, 1 Binn. 537; Harvey v. Boies, 1 Penna. Rep. 13; Weierbach v. Trone, 2 W. & S. 409; McClurg v. Ross, 5 Binn. 218; Gosling v. Morgan, 8 Casey 273; Maher v. Ashmead, 6 Id. 344.

There was no paper-book for defendant in error.

The opinion of the court was delivered, January 20th 1868, by AGNEW, J.

The declaration avers that at and before the speaking of the words laid, the defendant accused the plaintiff with the larceny of certain hats. It seems to be natural to ask why the pleader did not declare upon the express charge of larceny? But it is the right of the plaintiff to select his own ground, and for this he may have a good reason. Bruce v. Cooper, 2 Watts 109, decides that the substance of the words spoken must be proved; not merely that the offence intended to be charged was substantially indicated by the language used. The witnesses might remember that the defendant in substance charged the plaintiff with larceny, and yet not be able to repeat the words themselves even in substance, and yet they might remember the words "you are a rogue, and I say it in presence of these men," that they related to the charge of larceny, and that the defendant intended so to apply them. It is our business, therefore, not to reject the words laid because others more plain have been used, but to see whether they were used in a relation that imputed an indictable and disgraceful crime, and are so sufficiently charged in the declaration.

It is truly said that juries look at the proofs rather than the pleadings: Beirer v. Bushfield, 1 Watts 24. After a trial before a learned judge having power to order a nonsuit, or to instruct a jury upon the insufficiency of the proof, we must presume that the jury found the larceny which gave character to the charge, and the malice which envenomed the imputation.

All that is left now is to see whether the declaration substantially avers a larceny as the subject of a colloquium, and imputes this meaning to the words laid. Though not drawn with precision, and specially demurrable for insufficiency of form, this defect is aided after verdict; for, as remarked by Justice Duncan, it is not to be presumed that the judge would direct, or that the jury would give the verdict without sufficient evidence: Weigley's Adm'r. v. Weir, 7 S. & R. 310. This and the following cases show the effect of the verdict and the defects it cures: Schlosser v. Brown, 17 S. & R. 250; Crouse v. Miller, 10 Id. 155; Beirer v. Bushfield, 1 Watts 23; Shultz v. Chambers, 8 Id. 300; Andres v. Koppenheafer, 3 S. & R. 259, 260. In this case there is a colloquium which substantially alleges a larceny of certain hats by the plaintiff as charged by the defendant in the same conversation in which the words laid were spoken. The declaration merely lays it as at and before the speaking. We must now presume the evidence...