Perselly v. Bacon

• Decision Date: 31 January 1855
• Citation: 20 Mo. 330
• Parties: PERSELLY, Appellant, v. BACON, Respondent.
• Court: Missouri Supreme Court

20 Mo. 330

PERSELLY, Appellant,

v.BACON, Respondent.

Supreme Court of Missouri.

January Term, 1855.

1. The words “you swore to a lie before the grand jury” held actionable.

Appeal from Polk Circuit Court.

Action for slander. The petition stated in substance that the defendant charged the plaintiff with “swearing to a lie before the grand jury,” and that this charge was made in allusion to the testimony given by plaintiff before the grand jury while investigating a charge of open lewdness and lascivious behavior against a slave. A demurrer to the petition was sustained by the Circuit Court.

F. P. Wright, for appellant.

I. The words are actionable in themselves. They import a charge of false swearing in a judicial proceeding, and before a tribunal competent to administer an oath. (7 B. Monroe, 475; 2 Conn. 40; 2 Serg & Raw. 469.) If the words are actionable per se, the defendant is liable, even though they were used in reference to an extra-judicial oath. (3 Penn. & Watts, 103; 10 Serg. & Raw. 47.)

II. But the grand jury had authority to administer the oath. Even if they cannot indict a slave for misdemeaner, it is their duty to inquire into all violations of law in their county and make presentments. (See R. C. 1825. tit. Slaves, § 36, 37; Ward v. The State, 2 Mo.)

W. H. Otter and S. A. Bennett, for respondent.

The words alleged to have been used by defendant do not necessarily imply a charge of perjury, and the colloquium, instead of showing that they did, shows that they did not amount to such a charge. Grand juries have no cognizance of misdemeanors when committed by slaves, and so the oath under which plaintiff was charged to have sworn falsely, was one which the grand jury was not authorized to administer. (R. C. 1845, tit. Crimes and Punishments, art. 9, secs. 27, 28; tit. Practice and Proceedings in Criminal Cases, art. 3, sec. 4; Mahan v. Berry, 5 Mo. 21; 20 J. R. 344, and cases cited; 2 J. R. 10.)

RYLAND, Judge, delivered the opinion of the court.

This is an action of slander. The words charged as spoken by the defendant are, in part, as follows: “You (said plaintiff meaning) swore a lie before the grand jury.” “You (plaintiff meaning) swore a lie before the grand jury, and I can prove it.” “He (said plaintiff meaning) swore a lie before the grand jury, and I can prove it.” The defendant demurred to the petition; the court sustained the demurrer, and rendered judgment for the defendant.

The plaintiff brings the case here by writ of error; and the only question before us is, whether the words in the petition are actionable of themselves or not. I have disregarded all the inducement in the petition, about there being a certain matter depending before the grand jury, of and concerning a certain charge against a certain negro slave; whether said slave had been guilty of open, gross lewdness and lascivious behavior; and that the plaintiff was sworn as a witness before said grand jury concerning said offense, against said negro slave, and had given evidence before said grand jury on said matter; and that said offense was properly cognizable before said grand jury, and that these words were spoken of and concerning the plaintiff, and of his being a witness before said grand jury, and of and concerning his evidence given before said grand jury, in the prosecution of said offense against said negro slave. For reasons which I shall hereafter mention, I put out of the case this colloquium--reject it as surplusage; it does no good, and should do no harm, and I will notice only the charge “of swearing to a lie before the grand jury.”

By our statute law, the foreman of a grand jury has the right and authority to swear witnesses, and the grand jury the right to examine witnesses under oath. The oath of a witness then, before a grand jury, is a lawful oath. “Every person who shall willfully and corruptly swear, testify, or affirm falsely to any material matter, upon any oath or affirmation, or declaration, legally administered in any cause, matter or proceeding before any court, tribunal or public body or officer, shall be deemed guilty of perjury.” (R. C. 1845, tit. Crimes and Punishments, art. 5, sec. 1, p. 377.)

The grand jury is a public body, empowered by law to administer oaths to witnesses, and then empowered by law to examine witnesses and to require witnesses to testify before them. To charge a person with swearing falsely before a grand jury is then, in our opinion, actionable, without laying special damages. The words in this declaration we consider actionable in themselves. ““You,” meaning the plaintiff, “swore a lie before the grand jury.” “He,” meaning the plaintiff, “swore a lie before the grand jury, and I can prove it.” Chief Justice Swift, in Chapman v. Gillet (2 Conn. 45), said: “It is a first principle, founded in the nature and fitness of things, that swearing falsely, when under an oath lawfully administered, is a crime. At first, perjury was confined to false swearing in a court of record; it was then extended to courts not of record.” Smith, J., in the same case said: “Upon principles of common law, perjury may be committed before any tribunal in which an oath may be lawfully administered; for, where the law will sanction an oath, it will not refuse its aid to punish a willful and corrupt violation of it. To constitute perjury, there must be the violation of a lawful oath, taken before a competent jurisdiction. If the oath may not be administered, it is a transaction which no court can recognize; but if the oath may lawfully be given, the law will regard it, and not suffer it to be violated with impunity.” “An oath,” says Lord Coke (3 Inst. 165), is an affirmation or denial of anything lawful and honest, before one or more, that have the authority to give the same for the advancement of truth and right. The same cannot be administered to any, unless the same be allowed by the common law, or by some act of parliament.” “The law takes no notice of any perjury,” says Blackstone, “but such as is committed in some court of justice having power to administer an oath, or before some magistrate or proper officer invested with a similar authority. It esteems all other oaths unnecessary at least, and therefore will not punish the breach of them.” (4 Black. Com. 137.) Hawkins observes: “that all such false oaths as are taken before those who are any ways intrusted with the administration of public justice, in relation to any matter before them in debate, or that are taken before persons authorized by the King to examine witnesses in relation to any matter whatsoever, wherein his honor or interest are concerned, are also punishable as perjuries. Therefore, it hath been holden that, not only such persons are indictable for perjury who take a false oath in a court of record, but also those who forswear themselves in a matter judicially depending before any court of equity, spiritual court, or any other lawful court.” (1 Haw. Pleas. Cro. 172, 173.) “The principle to be extracted.” (says Hosmer, J., in the same case from Connecticut Rep. (Chapman v. Gillet) after citing the authorities which I have quoted above) “from the authorities cited, is obviously this; that all oaths taken by witnesses before acknowledged authority, which are necessary, and concern the honor or interest of the state, the law recognizes, and if violated will punish. This is the true spirit of the common law, founded, as it is, on private justice and public convenience.” In the case of Ramey v. Thornberry, reported in 7. B. Monroe 475, the Court of Appeals of Kentucky held that the words, “Ramey swore a lie in the Pike Circuit Court, on the trial of the common wealth against Davidson Mays,” were actionable in themselves. The court observed: “To charge a person, in general terms, with having sworn a lie, or having sworn falsely, is certainly not actionable. But here, the words very clearly import a charge of false swearing in a judicial proceeding, and before a tribunal competent to administer an oath.”

Apply this doctrine to the case at bar, and it will be seen that the words here spoken are equally actionable of themselves. It was before a grand jury; a competent body to administer oaths, and before which a false oath may be perjury by the statute law. In Ceely v. Hoskins (Croke Charles, 509) the words were: “Thou art forsworn in a court of...