Mahan v. Berry

• Citation: 5 Mo. 21
• Parties: MAHAN v. BERRY.
• Decision Date: 30 September 1837
• Court: United States State Supreme Court of Missouri

5 Mo. 21

MAHAN

v.BERRY.

Supreme Court of Missouri.

September Term, 1837.

HAYDEN and ADAMS, for Plaintiff in Error. The plaintiff, James Mahan, charges in his declaration that the defendant, in a conversation concerning evidence which the said Mahan had given on an arbitration, said of him that he had sworn a lie, had been guilty of perjury, had perjured himself, &c. The defendant pleaded not guilty. Upon the trial of the cause, it was admitted that there had been an arbitration, four or five years since, between James A. Mahan and William Berry, about a horse called Charley, as set forth in the declaration. That the agreement to submit said arbitration was by parol, and not in writing; and that the arbitration was not made a rule of court, nor agreed to be made a rule of court; and that upon that arbitration, the plaintiff was introduced as a witness, and an oath administered to him by an acting justice of the peace, by the request of the arbitrators, to testify in relation to the matter in difference between the said James A. Mahan and William Berry, and did testify as a witness. The plaintiff then proved by one witness that the defendant, in a conversation concerning the testimony of said Mahan, upon said arbitration, stated of him that he had sworn a lie. The plaintiff then, by another witness, proved that the defendant, in speaking of the testimony of the said plaintiff, upon the aforesaid arbitration, said of him that he had committed perjury, or had been guilty of perjury. The plaintiff then offered to prove that the defendant, before the commencement of this suit, and in another and different conversation than those above stated, in speaking of the testimony upon said arbitration, said of him that he had been guilty of perjury; which proof was offered by the plaintiff to prove the words laid in the declaration, and as a substantive cause of action; but the court refused to permit the plaintiff to prove the same unless he would abandon his previous testimony in relation to the speaking of the words, which the plaintiff refused to do; to which opinion of the court the plaintiff objected. There was no evidence to prove that the witness, at the time the words were spoken by the defendant of the plaintiff, knew of the nature of the agreement to submit to arbitration. The plaintiff moved the following instructions: 1. That the if jury believe that the defendant charged the plaintiff with perjury, as set forth in the declaration, then they must find for the plaintiff. 2. That if they believe from the evidence of Moses Netherton, given upon the trial of this cause, that the defendant intended to charge the plaintiff with perjury, then they must find for the plaintiff. 3. That if they believe from the evidence of Netherton, in this cause, that the defendant intended to charge the plaintiff with swearing a lie before the arbitrators, in the declaration mentioned, after having been sworn by a justice of the peace to tell the truth touching the matters in difference submitted to said arbitrators, that such evidence may be taken into consideration by the jury, to show the malice of the defendant in speaking the words stated by Peter B. Cockrell. 4. That to recover in this case, it was not necessary for the plaintiff to prove that the submission to arbitration was made upon a bond entered into by the parties, and made a rule of court; all of which instructions were refused.

The defendant then moved the following instruction: That admitting the evidence given by the plaintiff to be true, that he cannot recover in this action; to the giving of which the plaintiff objected, but the court gave it. A verdict and judgment were given for the defendant below. To reverse the judgment of the court below, the counsel for the plaintiff submitted the following points: 1. That the court erred in refusing the evidence offered by the plaintiff to prove the speaking of the words. Although a plaintiff, in his declaration, may lay the speaking of slanderous words to have been in the presence of a particular individual, still he need not prove them to have been spoken in his presence. 2 Starkie's Ev. 452; B. N. P. 5. The gravamen of the action consists in the malicious publication of the words, and to confine the plaintiff to one uttering, would be to take from the jury the right to determine upon the sufficiency of the proof to establish the speaking of the slanderous words; it would be keeping from the jury evidence pertinent to the issue, and tending to ascertain whether the defendant was guilty or not guilty of charging the plaintiff with perjury.

2. The court erred in giving the instruction prayed for by the defendant, and in refusing to give those asked for by the plaintiff. The evidence shows that the oath was taken in the presence of...