McDavitt v. Boyer

Decision Date08 November 1897
Citation169 Ill. 475,48 N.E. 317
PartiesMcDAVITT v. BOYER.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from appellate court, Third district.

Action on the case by Thomas J. Boyer against John McDavitt for slander. There was judgment for plaintiff, which was affirmed by the appellate court (67 Ill. App. 452), and defendant again appeals. Reversed.

Henry S. Tanner and Joseph E. Dyas, for appellant.

S. I. Headley and F. W. Dundas, for appellee.

MAGRUDER, J.

This is an action on the case, brought by appellee against appellant, for slander. The trial resulted in verdict and judgment against appellant. A new trial was refused, and judgment was rendered upon the verdict. An appeal was prosecuted to the appellate court. The appellate court has affirmed the judgment of the circuit court, and the present appeal is prosecuted from such judgment of affirmance. The declaration consists of three counts. The alleged slander, as set up in the first two counts, consists of a charge that the plaintiff had committed perjury. The third count avers that the appellant had charged the appellee with the commission of the crime of subornation of perjury. The plea of not guilty was filed by the appellant here, the defendant below; and it was mutually agreed that any evidence might be admitted under the plea of not guilty which would be admissible under any special plea well pleaded. The appellant and the appellee are both farmers, living in Edgar county, and having farms which adjoin each other or which are separated only by a public road. Several suits of a petty kind had been tried before justices of the peace, and in the county court. The appellee, Boyer, in one of these suits, sued the appellant, McDavitt, to recover damages alleged to have been committed by the appellant's hogs in appellee's cornfield. It was alleged that the hogs of appellant had trespassed upon the field of appellee, and had destroyed corn amounting to 125 bushels. This suit resulted adversely to appellant, and was appealed to the county court, where another trial was had, which resulted in judgment against him, and in favor of appellee. Appellant brought suit against the appellee to recover damages claimed to have been sustained by reason of a trespass committed by the bull of appellee. Upon the trial of the latter suit the appellee and his sons and sons-in-law swore that the bull belonged to Mrs. Boyer, and not to the appellee; that when appellee was married, 28 years before that time, his wife's father had given her a cow, which was afterwards sold; and that in March, 1892, appellee bought the bull in question, and took it home, and gave it to his wife in place of the cow, which he had sold some 26 years before that time. Appellant was defeated in this suit also. In the suit brought by appellee against appellant for damages done by the hogs to appellee's corn, testimony was taken as to the value per bushel of the corn destroyed. Before the beginning of either of the two suits last named, Mrs. Boyer, the wife of the appellee, had brought a replevin suit against the appellant for some turkeys.

The suit at bar was begun on March 23, 1895. On March 21, 1895, a warrant was sworn out by the appellant against the appellee before a justice of the peace named Flenner, charging appellee with perjury. A change of venue was taken from Flenner, who lived in the same township with both of the parties, to another justice of the peace, named Hogue, who lived in the township of Kansas. On the next day, March 22, 1895, a preliminary hearing was had before Hogue on the charge of perjury and subornation of perjury, preferred against appellee by appellant. It was charged that the appellee had sworn falsely upon the trial of the suit for damages claimed to have been done by appellant's hogs, in this: that, upon the trial of that suit, appellee swore that he sold the balance of the corn not destroyed by the hogs to one Early Pinnell, for 32 cents per bushel. Upon the trial of the present case, Early Pinnell swore that he did not pay appellee 32 cents per bushel for the corn, but that what corn he did purchase he bought of one Shepherd, and paid 30 cents per bushel for it. It is admitted by appellee that he did not sell the corn to Pinnell for 32 cents per bushel. In the case at bar, appellant and four other witnesses swear that, upon the trial of the suit for damages done by the hogs, appellee swore than he did sell the corn to Pinnell at 32 cents per bushel. One of the witnesses, testifying that he did so swear, was a juror, who sat upon the trial of the case when it was tried, upon appeal, in the county court. On the contrary, appellee and his sons and two sons-in-law and two other witnesses swear that appellee did not testify upon the trial of the suit that he sold the corn to Pinnell at 32 cents per bushel, but that he merely testified that he understood corn to be worth 32 cents per bushel, and that Pinnell had paid that price for corn raised upon the same place. The main charge made by appellant against appellee upon the preliminary hearing before the justice was that he swore falsely in stating that he had sold the corn for 32 cents per bushel. Appellant also charged that appellee had sworn falsely in the suit brought by appellant for damages done by appellee's bull, in stating that his (appellee's) wife owned the bull, and that he (appellee) was not himself the owner of it, and in also stating that the hedge fence around appellant's farm was only 2.5 feet high, when the same was 4 feet high. Appellant introduced testimony tending to show that appellee had always treated the bull as his own individual property, and had admitted in testimony given by him in the replevin suit that all the cattle and horses and hogs on his place belonged to himself, while the chickens and turkeys belonged to his wife.

The following testimony was given upon the trial of the present suit, by witnesses introduced by the plaintiff below (appellee here): The justice Flenner testified: ‘McDavitt came to me, and asked for a warrant; wanted to file a complaint against Boyer for the crime of perjury and subornation of perjury. * * * He said Boyer had perjured himself, and caused others to do so. * * * He said he wanted a warrant for both these charges. * * * I filled out the complaint, and he signed it. * * * This was the day before the trial before Hogue.’ The appellee, Boyer, testified as follows: ‘While going on with the trial, he made remarks divers times that I had sworn to a lie and perjured myself. * * * McDavitt was acting as a lawyer there, prosecuting the case. He examined and cross-examined the witnesses, and made an argument in the case. McDavitt did not to me, nor in my hearing, before the trial, charge me with perjury or subornation of perjury. I could not say that, after the trial was over, McDavitt charged me with perjury or subornation. He used this language several times during the trial of the case. The first thing he said was that I had sworn to a lie, and that he could prove it. * * * I am usually known as Pete.’ William Bishop testified: ‘Did not hear any statements made by defendant except at the trial. * * * He said Mr. Boyer had sworn to a lie. * * * On the witness stand he said that Boyer had perjured himself. * * * McDavitt was prosecuting the case himself. Do not think he had any assistance. All he said about Boyer was said during the trial.’ James F. Hogue, the justice, testified: ‘This preliminary hearing of Mr. Boyer was before me at Kansas, on March 22, 1895. McDavitt said that Boyer had committed perjury; that he had sworn falsely. He said he could prove it if I allowed him to. * * * This was during the trial, and he was conducting the prosecution, and those words were spoken to me as justice, holding the examination, and during the trial. They were merely directed to me.’ Joseph Glover, son-in-law of the appellee, testified: ‘McDavit said that Boyer had sworn to a lie about that corn, and about the bull of his wife. * * * He made these statements three or four times during the trial. * * * I am not positive that he said anything after the trial.’ Charles E. Smith testified: ‘I attended the preliminary hearing at Kansas before Hogue last spring. At that trial McDavitt said several times that Mr. Boyer had sworn to a lie, and he could prove it. * * * Most of the time those assertions were made, McDavitt was acting as his own attorney. He made those statements to Headley. * * * Mr. Headley was acting as Boyer's attorney.’ Frank Gross, Lee Stutsman, John Boyer, and Walter Boyer, the last two being sons of the appellee, and Frank Cortie, a son-in-law of the appellee, all testified that they were present at the hearing before the magistrate, and that, during the preliminary trial there, McDavitt said that Boyer had sworn to a lie, and that what he thus said was said during the progress of the trial.

One of the errors assigned by the appellant is that the trial court erred in giving the instructions to the jury which were given for the appellee. The first instruction told the jury that if they believed from a preponderance of the evidence that the defendant spoke and published of and concerning the plaintiff the words charged in the declaration, or some set of words as therein charged, then the law presumes that they were spoken maliciously, and with a view to defame and injure the plaintiff, and that this presumption of law can only be rebutted by evidence showing otherwise. The second instruction contained the following words: ‘All the plaintiff is bound to prove on his part to entitle him to recover in this case is the speaking by the defendant of enough of the slanderous words charged in the declaration to amount to a charge of perjury or a charge of subornation of perjury against plaintiff, as set forth in some one or more set of words, as alleged in the declaration; and if the jury believe from the preponderance of the evidence that the defendant is guilty of...

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