Whitaker v. Carter

• Decision Date: 30 June 1844
• Court: North Carolina Supreme Court
• Parties: SAMUEL WHITAKER v. DAVID CARTER.

26 N.C. 461

4 Ired. 461

SAMUEL WHITAKER

v.DAVID CARTER.

Supreme Court of North Carolina.

June Term, 1844.

It is no ground for a new trial, that a challenge of a juror by a party for cause has been improperly overruled, where the party has been tried by a jury to whom he had no objection, not having been prevented from exercising his privilege of challenging four peremptorily.

In an action on the case for slander, it is competent for the defendant to shew that the words were uttered before a tribunal of a religious society, of which the plaintiff and defendant were both members, for the purpose of disproving malice. But the decision of such tribunal is incompetent evidence.

On the trial of an action for slander in charging the plaintiff with perjury, it is not competent for the defendant to give evidence of any other perjury than that laid in the declaration, and affirmed to be true by a plea of justification.

In a declaration for slander in charging the plaintiff with perjury, where it is alleged that the plaintiff had been in a certain suit sworn and examined on oath as a witness &c., it is not necessary to state what he testified on such trial. At all events such an objection comes too late after verdict.

The cases of the State v Arthur, 2 Dev. 217, and State v Twitty, 2 Hawks 449, cited and approved.

Appeal from the Superior Court of Law of Wake, at Spring Term, 1844, his Honor Judge PEARSON presiding.

This was a case for slander, in charging perjury as to the sale and delivery of two sacks of salt.

Before the jury were impannelled, the defendant challenged Mr. William Page for cause, and proved by the oath of Page, that the plaintiff's son had married the daughter of a brother of the juror. The court did not think the cause sufficient, and the defendant then challenged Page peremptorily. The defendant also challenged Madison Hodge for cause, and proved, by the oath of Hodge, that, during the present term, the plaintiff, knowing that he was one of the original pannell, had talked to him about the case in a way shewing an intention on the part of the plaintiff to prejudice the juror against the defendant. Hodge was under subpœna as a witness for defendant. The court did not think the cause sufficient, as it did not appear, nor was it alleged that the juror was, in fact, prejudiced against the defendant, by this conduct on the part of the plaintiff. The defendant then challenged Hodge peremptorily. The defendant then challenged two others peremptorily--and the jury was impannelled.

Woodall swore, that about July, 1839, in the store of the defendant, he heard the defendant say of the plaintiff, “Whitaker can prove any thing, he swore me out of two sacks of salt.” The plaintiff then read a warrant and judgment in favor of Carter against Whitaker, tried before one Cook, a justice of the peace, and proved by Poole, that on the trial, Whitaker produced and swore to, under the book-debt account, an account against Carter in which one of the items was two sacks of salt, and that this account was allowed by the justice as a set off to Carter's claim. On cross-examination Poole stated, that Carter, at the time of the trial, denied that he had ever got the two sacks of salt, and the parties had angry words. A few days afterwards, Whitaker told this witness, that he had, upon going home, found he was mistaken in the date of his account; that the salt had been sold and delivered in December, 1835, and not in December, 1836, as stated in the account; that he stated further, that, in conversing with his family, he found that he could have proven the delivery by his son Barnes, who was present at the time it was delivered out of his wagon; that he also stated, that as to Carter's saying that he at first said it was lime instead of salt, that made no difference, as the price of two casks of lime was about the same as the sacks of salt; that he drew up the account from memory, his books being at home, and, although he mistook the date, yet he was careful to put down no items but what were right. Crowder swore, that, in the summer of 1839, he heard defendant say, that Whitaker, the plaintiff, had sworn falsely about two sacks of salt, and he intended to make him carry them all over Wake county on his electioneering campaign. Joiner swore, that, being the Methodist Circuit rider, the plaintiff and the defendant both being members of his church, he called on the defendant in the summer of 1839, and requested him to state over the facts, with a view to have the charge investigated by a church meeting. The defendant declined being the accuser, but, at the instance of Joiner, stated, that the plaintiff had, on the trial of the warrant, sworn falsely about the two sacks of salt. Thomas Whitaker swore, that he was present at the church meeting, about the 25th of August, 1839, when the matter against the plaintiff was taken up. The defendant said he was not the accuser, but if the charge was brought forward he was prepared to prove it. The charge had before been stated to be, that Samuel Whitaker, the plaintiff, had sworn falsely, in saying that Carter, the defendant, owed him for the sale and delivery of two sacks of salt, whereas, in fact, Carter owed him nothing, as the salt had never been sold or delivered. Upon the cross-examination, the defendant's counsel proposed to ask this witness, whether the trial was gone into, and what was the decision. This was objected to. The court admitted the evidence, so far as to shew that a trial took place, but ruled out the evidence as to the decision, upon the ground that the fact of there having been a trial was relevant to shew, by way of explanation, the circumstances under which the charge was made, but that the result of the trial ought not to influence the case one way or the other. The witness said, that the trial was had, and that the defendant, as a witness, said that the plaintiff had sworn falsely as to the two sacks of salt. Much was said: among other things, he recollected, that the plaintiff said his own son, Barnes, was present when the salt was delivered, and that he had made out his account in haste, and had dated it in 1836, instead of 1835.

The defendant offered in evidence the account which he warranted upon, and the account sworn to by the plaintiff under the book debt law, as a set off on the trial, which contained an item of two sacks of salt at $8, sold and delivered 24th December, 1836. Peleg Spencer swore, that he had acted as the bar-keeper of the defendant, who kept tavern in Raleigh; that on several occasions in 1836 and 1837, he had presented the defendant's account to the plaintiff, who said he had a due bill on Carter, which ought to be credited, but did not allege any other claim; that, in November, 1837, just before the warrant issued, the plaintiff and the defendant had a conversation in his presence about the matter. The defendant entered a credit for the due bill, and asked if the plaintiff had any other claim. The plaintiff said he ought to be credited for two casks of lime. The defendant asked if that was all. The plaintiff said he had no other charge. The defendant denied ever getting the lime. The plaintiff insisted upon the credit. The defendant said, “I will bring this matter to a close,” and immediately took out the warrant which was returned and tried on that day. The witness said he was about the tavern of the defendant in the Fall and Winter of 1235; that the defendant was in the habit of using but little salt, as he bought bacon and not pork, and usually got salt from some merchant in town, by the peck or half bushel, as it was needed about the tavern; that he did not see either two or one sack of salt about the establishment, and thought, from his situation, he would have seen it had it been delivered. Mrs. Beasely swore, that she was the defendant's house keeper in the Fall of 1835, had charge of the smoke-house, dairy, &c., and did not see either two or one sack of salt; that she thought, from her situation, she must have seen it, if it had been about the establishment. She said she was raised in Hyde county, never saw salt in sacks until since the commencement of this action, and from this circumstance, thought, if a sack of salt had been delivered, her attention would have been fixed on it. The defendant called several witnesses, as to the character of the witness, Woodall, who stated that he was a man who talked a great deal, and had the character of telling lies, sometimes in giving exaggerated accounts and descriptions of things, and at others in telling falsehoods calculated to do mischief in the neighborhood; that he had never been charged with telling a lie when on oath or with being dishonest, except in the particular of not regarding the truth in conversation. The witness, Justice, said he would not, from his character for lying, believe him on oath. The plaintiff called Barnes Whitaker, his son, who swore that, some time shortly before Christmas, in 1835, having been to Fayetteville with his father's wagon, he brought to Raleigh, among other things, three sacks of salt; that he drove the wagon up to the defendant's house in the cross-street near where Mr. Manly then lived, and, in the presence of his father and the defendant, delivered to the defendant two sacks of salt, and then carried the other sack to Mr. William H. Haywood, sen.; that his father was a member of the Legislature at the time, and boarded with Carter. Mr. Haywood swore, that, sometime in the winter season, he could not recollect the year, but the Legislature was in session, he saw a wagon in the main street, near the defendant's house; that he asked the witness, Barnes Whitaker, what he was loaded with, the reply was salt. The witness proposed to buy a sack; Barnes said, he had sent to the State House for his father, who would be there in a few moments; that accordingly the plaintiff soon came; that the plaintiff said there were but three...