Palmer v. Hunter

• Decision Date: 31 January 1844
• Parties: PALMER v. HUNTER.
• Court: Missouri Supreme Court

8 Mo. 512

PALMER

v.HUNTER.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM CLINTON CIRCUIT COURT.

WILLIAM M. CAMPBELL, for Appellant. 1. The introduction of the transcript of what is called the docket of Justice Funkhouser, was illegal and improper, because it was not properly certified and authenticated, and because it contained much extraneous and irrelevant matter, that was calculated to mislead the jury. This was good cause for a new trial. Rev. Stat. Mo. 347, § 32, p. 419, § 9; 7 J. J. Marshall's R. pp. 415, 421, 423. 2. There was no evidence given on the trial that the “Hunter” of whom Palmer spoke the slanderous words, respecting which the witnesses testified, was Joseph Hunter, the plaintiff in this suit, and the innuendoes of the declaration are entirely unsupported, and for this reason a new trial should have been granted. 3. There was no evidence whatever given to sustain the third and fourth counts in the declaration, and as the verdict was general, a new trial should, for that reason, have been awarded. 11 Wend. 596. 4. The declaration of the plaintiff is materially defective. It does not allege that Funkhouser, the justice, had a right to administer the oath to Hunter, nor that he had jurisdiction of the cause which was on trial; nor does it state that the matters sworn to by Hunter were material to the matter on trial before the justice when Hunter testified before him, and the declaration is otherwise defective, and for that reason the judgment should have been arrested. See 5 Mo. R. pp. 21, 24, 25, 51, 53; Roscoe's Crim. Ev. 673, 680; Selw. N. P. 427, 434, 435, note; 4 Mo. R. 46-48. 5. The third count of the declaration is materially deficient and insufficient, because it does not, in any manner, refer to any trial or judicial proceeding, nor connect the false swearing charged with any such trial or proceeding; and as a general verdict was rendered, the judgment should have been arrested for this reason. 6 Term R. 691; 5 Cowen R. 503; 1 Caine's R. 347; 3 Cowen R. 231; 4 Digest N. Y. R. 1032-1035, 1040, 1045; 11 Wend. 596; ibid. 38-40.

LEONARD, for Appellee. 1. The judicial proceeding before the examining justice was relevant to the issue, and the certified copy competent evidence of such proceeding, Session acts of 1838 and '39, p. 43, title Evidence, § 14; Rev. Stat. of 1835, title Justices of the Peace, p. 347, §§ 31-32; Bryan v. War and Hickman, 4 Mo. R. 110. 2. The motion in arrest of judgment was properly overruled. 1st. The fourth count is admitted to be good, and where there are several counts in a declaration, and entire damages are given, the judgment will not be arrested, although some of the counts may be bad. Rev. Stat. of 1835, p. 470, § 4 of 7th art. of the act relating to Practice at Law. 2nd. All the counts in this declaration are, in fact, good after verdict. The fourth count is admitted to be good. The third count contains an averment that the defendant, in uttering the words laid, intended, and was understood by his hearers, to impute to the plaintiff the commission of perjury, and this is sufficient to suppt the count, even against a demurrer. Goodrich v. Woolcott, 3 Cowen's R. 239; Woolnoth v. Meadows, 5 East R. 463; Cornelius v. Van Slyck, 21 Wend. R. 70; Peake v. Oldham, 1 Cowper's R. 272. The first count charges words that are actionable without the aid of the preliminary averment of a judicial proceeding and colloquium in relation thereto. Much more is the count good when aided by such averment and colloquium. Neven v. Munn, 13 Johns. R. 48; Gilmore v. Lowell, 8 Wend. R. 573; Roberts v. Camden, 9 East R. 96; Patton v. Ward, 3 Caine's R. 73. The second count charges the words to have been spoken of the plaintiff, in a conversation about the judicial proceeding and testimony of the plaintiff, alleged in the preliminary part of the first count, and is good after verdict, without an averment of the jurisdiction of the justice, or of his power to administer the oath, or of the materiality of the matter sworn. Rev. Stat. of 1835, title Practice of Law, p. 468, § 7, clause 9; Paryburn v. Ramsey, 11 Johns. R. 142; Neven v. Munn 13 Johns. R. 58; Chapman v. Smith, 13 Johns. R. 80; Sherwood v. Chase, 11 Wend. R. 38; Crookshank v. Gray, 20 Johns. R. 344. 3. There are no sufficient grounds in the record for a new trial. Admitting, for the present purpose, that when there are several counts in a declaration, some good and others bad, and a general verdict, the court will grant a new trial, if there be not sufficient evidence applicable to the good counts to uphold the verdict, yet here the first count is good without any preliminary averment of a judicial proceeding; and after verdict, both the first and second counts are certainly good, when aided by such averment, although defectively stated, and there is ample evidence in the record, applicable to each of these counts, to uphold a verdict found by a jury and approved by the Circuit Court.

NAPTON, J.

This was an action of slander commenced by Hunter against Palmer, in the Circuit Court of Clinton county, for words spoken. The declaration contained four counts. The first count, after reciting that there had been a prosecution pending in Clinton county, before one Abraham Funkhouser, a justice of the peace, against William Sally, for larceny, and that on such trial said plaintiff was examined as a witness on oath, and gave testimony in behalf of the defendant, proceeds to state a colloquium about this trial and concerning the evidence given by him on this trial, and avers, that in this conversation the defendant uttered of the plaintiff these false and scandalous words: “Hunter swore a point blank lie to clear William Sally of stealing honey.”

The second count, after stating the colloquium as in the first count, charges te words spoken to be: “Joe Hunter swore a barefaced lie on Sally's case.”

The third count contains no colloquium, and lays the actionable words to be, ““Hunter swore a lie,” with an averment, that the defendant meant thereby, and was understood by the bystanders, to charge the plaintiff with the crime of perjury.

The fourth count contains no averment about the trial before the justice, or the evidence thereon, and lays the words spoken to be, “He (the plaintiff) committed perjury.”

Defendant pleaded not guilty, and the statute of limitation: upon these issues the parties went to trial, and a verdict was found for the plaintiff, and his damages assessed at nine hundred and forty-six dollars. Motions for a new trial and in arrest of judgment were made and overruled, and exceptions taken.

The bill of exceptions contains the testimony.

N. Henderson testified that he heard defendant say. that “William Sally had stolen his (defendant's) honey; and that he had prosecuted Sally: and that Hunter swore a lie to clear Sally.”

J. H. Henderson stated, that he had heard defendant say, in reference to the trial of Sally before the justice, that “Hunter had sworn a barefaced lie, in behalf of William Sally, to clear him.”

Sebree, a third witness for the plaintiff, heard defendant, between the 10th and 20th of September, 1840, say, that “Sally was sworn clear, and Hunter was a witness; that he had swopped farms with Hunter, and Sally had stolen his honey; that he had prosecuted Sally, and he was sworn clear; that he would never again prosecute a man for stealing, as there was no law for convicting thieves; and that if a man were to steal his horse out of his stable he would not prosecute him.”

Williamson, another witness, heard defendant say, “Hunter had sworn a lie to clear William Sally, and he would like to be sued by Hunter.”

The plaintiff then offered to read a transcript of the docket of the justice, A. Funkhouser, before whom the trial of Sally was had: this was...