Martin v. Miller

• Decision Date: 31 May 1835
• Parties: ISAAC MARTIN v. WILLIAM S. MILLER.
• Court: Missouri Supreme Court

4 Mo. 47

ISAAC MARTIN

v.WILLIAM S. MILLER.

Supreme Court of Missouri.

May Term, 1835.

APPEAL FROM THE CIRCUIT COURT OF HOWARD COUNTY.

TOMPKINS, J.

This was an action of slander commenced by Miller against Martin in the Circuit Court. Martin filed a plea of justification and issue being joined, Miller had judgment in that court, and to reverse it, Martin appeals to this court. Some of the evidence given on the trial of this cause by the defendant appears on the record, which we do not think it material to state, as it is not pretended there was not enough said to show that the defendant's counsel who seeks to reverse the judgment of the Circuit Court for refusing instructions prayed by him, had a right to demand such instructions from the court. The plaintiff to prove his general character gave in evidence part of a deposition of a witness who, to the question put, answered that he had known Miller the plaintiff as a neighbor for the last six years, and had never known his character impeached only in the present case. The defendant then offered to read to the jury a part of the same deposition, in these words, viz: Question. Was William S. Miller never presented to the grand jury when you were a member of the body? Answer. He was presented for swearing falsely and acquitted by the grand jury. Question. State what that false swearing was alleged to have consisted in, and on what occasion it took place? Answer. To the best of my recollection he was presented for swearing falsely about the tender of money for some town lots. The plaintiff's counsel objected to the admission of this latter evidence and the court sustaining his objection, the defendant's counsel excepted to the opinion of the court. The following instructions were asked by the plaintiff and given by the court. 1st. “If the jury believe from the evidence that the plaintiff was not guilty of perjury as charged by the defendant, then they are bound by law to find for the plaintiff. 2nd. In order to find the plaintiff guilty of perjury, they must believe from the evidence that the plaintiff knowingly and willfully swore falsely, in relation to some matter material to the issue between the plaintiff and defendant, in the case wherein the plaintiff testified in the court of the justice of the peace.”

The counsel for the defendant excepted to the giving of these instructions and prayed the following to be given to the jury. 1st. “If perjury was committed by the plaintiff in denying any matter, it is not perjury the less because on cross-examination, or further examination of him, he confessed or stated the matter which he had before denied. 2nd. If the plaintiff as a witness before Justice Black in the trial of the cause stated in the defendant's plea, stated a matter which was false within his own knowledge, such statement is not the less perjury because such witness may on further examination or interrogation have admitted or stated such matters before denied.” These instructions asked by the counsel of the defendant were refused by the court. Ought then, the instructions asked by the plaintiff's counsel to have been given, and those by the defendant's to have been refused, and did the Circuit Court err in excluding the testimony offered by the defendant as above mentioned?

To the first instruction asked by the plaintiff, no objection could be raised except that it was a waste of time to ask the court to instruct the jury to do their...