Kennedy v. Dear , 6 Port. 90 ( 1837 )

GOLDTHWAITE, J.

Bradley Dear instituted this action of slander in the Circuit court of Wilcox, and in his declaration, charged Jonathan Kennedy with having uttered of him, the words, “ You committed perjury,” with a colloquium, staling them to have been spoken in reference to a cause, wherein the State of Alabama was plaintiff, and the said Kennedy was defendant, on a charge of assault and battery ; which cause had been then lately tried, before one Miller, a justice of the peace. The defendant demurred to the declaration, and the demurrer being overruled by the court, he pleaded not guilty, and the statute of limitations, on which issue was joined, to the country, and a verdict returned, for the plaintiff.

On the trial of the case, the defendant tendered a bill of exceptions to the admission of certain evidence, on the part of the plaintiff, and the refusal to admit other evidence, on behalf of the defendant — which may all be stated as follows:—

1. The Circuit court permitted a witness to ¡Drove that he was an acting justice of the peace, without any evidence being produced, to shew his official character.

2. The same witness was permitted to state, that a certain case of The State vs Bradley Dear, had been before him.

3. The witness having proved an affidavit made by plaintiff, the defendant offered to prove, that when the same was presented to the plaintiff, to be verified, he objected to its terms, stating that the' assault and battery, was not, in fact, a violent one, as averred in the affidavit; but a mere chucking under the chin, or something like that: but that, on the justice informing him, that it was in the form required in such cases, he swore to it, — and that it was on reading the terms of said affidavit, and without information, as to the explanation before the justice, that the defendant uttered the slanderous words imputed to him.

This evidence the Circuit court excluded, for the reason that' the circumstances tended to shew, that the plaintiff was guilty of perjury ; although it was stated, by defendants counsel, to be offered, in mitigation of damages.

It is now assigned as error, that the Circuit court erred in overruling the demurrer to the declaration, and in the several matters excepted to on the trial,

It is contended, that the declaration shows a case,in which a justice of the peace, had no authority, and therefore, an oath administered by him, in the course of it, was extra-judicial, — and the defendant would be discharged from any liability for slanderous words-imputed to him, if they referred to an oath so admi--nistered.

If a defect in the jurisdiction of the justice of the peace was apparent on the record, this position would be properly assumed; but in our opinion, the case which is stated in the declaration, only refers to an examination Or prosecution, for, and on a charge of assault and battery, and not an extra-judicial trial, for that offence, before a court, without jurisdiction. This objection can not, therefore, avail, and there was no error in overruling the demurrer.

1. The first exception, as to the incompetency of the evidence offered, to establish the official character of the justice of the peace, can not prevail. This is the usual and ordinary mode of proof in all cases,when the act of an officer has to be proved, except as in suits against himself. Berryman vs Wise;^* Pother vs Luther;^† Bullock vs Wilson.^‡

2. The next exception is, that the justice was permitted to state, that he had had before him the case of The State vs Bradley Dear. If we were not satisfied, from the context of the bill of exceptions, that the name of Dear is here substituted for that of Kennedy, we should decide; that any inquiry relating to such a suit, without shewing the relevancy of the inquiry, to the case before the court, would be irregular and erroneous; but from what immediately fol-lows the statement of this matter in the bill of exceptions, we are induced to believe, that the inquiry was made of a suit, against Kennedy; for, when the affidavit was introduced, and the witness -asked if Dear did not object to its terms, before he would verify it, the bill of exceptions evidently refers to the same proceedings ; and it would be absurd, to suppose that Dear was about to swear against himself. From this circumstance, we feel compelled to infer, that the one name has been substituted for the other, by a clerical mistake, either in transcribing or framing the bill of exceptions. Assuming this to be the case, there was no error in the justice being asked the question; but he would not be permitted to speak of the papers connected with the suit, unless they wei’e produced.

3. The only remaining exception, to be examined, is that which refers to the rejection of the evidence proposed to be given, of what Dear said, when the affidavit was presented to him, to be verified : and, it is not easy to perceive, on what principle this evidence could be refused. The legal effect of it, was evidently misconceived, by the Circuit court. — So far from this evidence having a tendency to induce the belief that Dear had sworn or was willing to swear to a falsehood, it proves that he was unwilling to use a word of doubtful import, the meaning of which might be misunderstood or misconstrued to the injury of another.

If the use of the word “violent,” in its legal acceptation, struck the imagination of Dear, as not properly applicable to the outrage committed on his person, we needliot be surprised, that it should have excited the indignation of Kennedy, when the affidavit was, for the first time shewed to him ; and if, as set forth in the bill of exceptions, it was on reading the affidavit, that the words were spoken of Dear, in relation to the use of the term “ violent,” it would go far to rebut the presumption of malice.

But, although Kennedy might be, in some measure excused, if the expression used by him, was made alone with reference to his understanding of the meaning of the word — yet, if, after cool reflection had intervened, he should have repeated the exceptionable words, under the hope and expectation, that he could find shelter or immunity from such a cause, the law will give no countenance to such an excuse.

Malice is essential to be shewn in actions of this description — and may be, and usually is, infered from the falsity of the words; but there is some excuse for the individual, who, mistaking the meaning of the word, rashly accuses his adversary of perjury, with reference to a peculiar meaning given by him, to the oath taken — when there is none for him, who ■ will endeavor to cloak his malignity, by taking refuge behind an inadvertent expression, or even a mistake of the fact sworn to.

In the case under consideration, all the circumstances attendant on the publication of the words spoken, were matters proper to be left to the consideration of the jury, as from the circumstances as well as from the words themselves, was the presumption of malice to be raised, or to be rebutted. ^* Van Rensellaer vs Dale.^†

In our opinion, the point is not presented, how far it is competent for a defendant, on the plea of not guilty, to shew facts and circumstances, from which the truth of the charge, as made, might be inferred; but the principiéis recognised and admitted, that a defendant cannot shew the truth, in mitigation of damages— but any facts or circumstances, which will rebut or repel the presumption of malice, are properly admissible, under the general issue.—Grant vs Hover.^‡

The Circuit court, therefore, erred, in excluding the evidence, covered by tins exception; and for this cause, the judgment rendered must be reversed, and the cause remanded.

* 4 Term Rep. 366.

† 3 Johns. Rep. 431.

‡ 5 Porter, 338.

* 2 Starkie on Evidence, 881; ib. 873.

† 1 Johnson's Cases, 279 ; 2 Starkie on Evidence, 862, 863.

‡ 6 Mum 14 ; 2 Starkie on Evidence, 877.