Pasley v. Kemp

• Decision Date: 31 January 1856
• Parties: PASLEY, Respondent, v. KEMP, Appellant.
• Court: Missouri Supreme Court

22 Mo. 409

PASLEY, Respondent,

v.KEMP, Appellant.

Supreme Court of Missouri.

January Term, 1856.

1. The supreme court will not reverse a judgment for the giving of an instruction which could not have prejudiced the appellant, nor for the refusal of instructions not warranted by the evidence.

Appeal from Callaway Circuit Court.

The case is stated in the opinion of the court.

Gardenhire and H. C. Hayden, for appellant.

J. F. Jones, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This is an action of slander, for words charged to have been spoken by the defendant of the plaintiff. The words charged in the first count are as follows: “You (meaning plaintiff) were a damned rogue in Virginia, and have followed stealing since you (meaning plaintiff) have been here, (meaning in Callaway county, Missouri); you (meaning plaintiff) stole my (meaning defendant's) staves and nails.” In the second count the words are thus charged: “I (meaning defendant) gave Samuel Pasley (meaning plaintiff) a damned good cursing yesterday; he (meaning plaintiff) was a damned rogue in Virginia, and has followed stealing since he has been here, (meaning Callaway county, Missouri); he (meaning plaintiff) stole my (meaning defendant's) staves and nails, and I (meaning defendant) can prove it--God damn him.”

The defendant denied the speaking of the words in his answer; denied all the material allegations in the plaintiff's petition. The cause was tried and the jury returned their verdict for the plaintiff, and assessed his damages at $750. The plaintiff remitted the sum of $250, and judgment was rendered in his favor for the balance. The defendant moved for a new trial, also in arrest of judgment, which being overruled, he excepted, and brings the case here by appeal.

In this court, the defendant (that is the appellant) objects to the judgment of the Circuit Court, and insists that it ought to be reversed, becaused the testimony did not prove the words as laid down; that, whether the words were proved or not was a question for the court, and if not proved, the plaintiff ought to have been nonsuited; that the 2d and 3d instructions for the defendant ought to have been given to the jury; and that the judgment ought to have been arrested, because the petition of the plaintiff is insufficient. Now as respects the proof of the speaking of the words, we think that it was sufficient to carry the case to the jury. The testimony, as set forth in the bill of exceptions, substantially proved some of the charges in the words, as laid in the petition. It was proved that defendant said, “Samuel Pasley (meaning the plaintiff) was a damned rogue, for he stole his (defendant's) staves and nails, and that he could prove it--God damn him.”

There was much proof about the charge of being a “rogue in Virginia, and keeping up stealing out here.” Indeed, the proof manifestly shows the conduct of a man of violent passions and regardless of his words, and the only excuse for his conduct, the habit of drinking spirituous liquors to excess--a most reprehensible habit, and rather an aggravation than excuse for an evil tongue. The words proved are almost identical with the words imputing one of the charges--“he stole my staves and nails.”

We think the words, as laid, were sufficiently proved, at least to carry the case before the jury, and we have no doubt the defendant's counsel, at the trial, thought so likewise, otherwise he never would have omitted the proper time to make his objection for defect in proof. He would have made it before the Circuit Court, and not waited until after verdict, and then, for the first time, make it in this court; but we have given him the full benefit of his objection by considering it here, and we must say that the evidence sufficiently supports the charge. There is nothing, then, in the first objection taken by appellant's counsel.

As to the instructions. The first instruction given for plaintiff must have some words left out or misplaced. It has no meaning as it now stands; that appellant's counsel says it is nonsensical; be this as it may, it...