Gudger v. . Penland ( 1891 )

The charge that one has committed an infamous offense, if false, is actionable per se. Pegram v. Stoltz, 76 N.C. 349; Wilson v. McKee,87 N.C. 300; Sparrow v. Maynard, 53 N.C. 195; Eure v. Odom,9 N.C. 52. It is not material whether the offense charged falls within the classification of felonies or misdemeanors, if, at the time when the words are spoken, a person convicted on indictment for it would be subject to infamous punishment. Eure v. Odom, supra. Imprisonment in the State prison is infamous punishment. Wilson v. McKee, supra; In thematter of Hughes, 61 N.C. 62. Perjury is a misdemeanor, and is punishable by imprisonment in the penitentiary or in the county jail, and by fine not exceeding $1,000. The Code, sec. 1092. The contention of the defendant's counsel that the slanderous language appeared to have been used while a judicial investigation was progressing, and that, under the principle stated in Nissen v. Cramer,104 N.C. 574, the defendant is absolutely exempt from liability, finds no support in the admitted allegations of the complaint. It does not appear affirmatively in the complaint whether the language imputed to the defendant in either of the paragraphs of the complaint, setting forth specific language in which the charge was couched on different occasions, was spoken at the time of the trial of the criminal action, or afterwards. The plaintiff was not required to negative the idea that the words, slanderous per se, were uttered under such circumstances that the defendant would be protected from liability on the ground of privilege. The fact, if true, that the words were uttered in the course of a judicial proceeding, and were relevant and pertinent to the matter before the court, must be set up in the answer if the defendant wishes to avail himself of it in his defense, unless it be gratuitously alleged in the complaint.

If it had been alleged that the language was spoken when the defendant was being examined as a witness on the trial of the indictment, still it does not appear that the defendant sustained such relation to the prosecutor as to furnish absolute or presumptive protection against liability. Nissen v. Cramer, supra; Shelfer v. Gooding, (600)47 N.C. 175; Briggs v. Byrd, 34 N.C. 380. There is nothing alleged in the complaint that will support the contention of the defendant's counsel that the action cannot be maintained.

We think that it appears with sufficient certainty that defendant charged the plaintiff with having sworn a lie when he was examined as a witness in the Criminal Court of Buncombe County on the trial, at a term mentioned, of an indictment (under section 1062 of The Code) against the persons named for destroying Penland's fence. We take judicial notice of the existence of that court, and of the fact that it had jurisdiction of the offense mentioned. S. v. Ledford, 28 N.C. 5; S. v. Brown, 79 N.C. 642. It was not necessary that the plaintiff should set forth the language or substance of the testimony delivered by him and referred to by the defendant as constituting the false swearing, unless the defendant, when speaking the slanderous words, went on to specify what the plaintiff did swear or in what particulars his testimony was false. Smith v. Smith,30 N.C. 29.

A formal prayer for relief is not now essential in any complaint, and where a plaintiff specifies, in different paragraphs of the complaint, language used by the defendant at various times before the action was brought, but amounting in each instance, in all of its varied forms, to a charge that the plaintiff swore falsely as a witness on the trial of a certain suit before a court of competent jurisdiction, it is not necessary to append to each specification a separate demand for damages. Harris v.Sneeden, 104 N.C. 369. Though an action could be maintained and damages recovered by proving the utterance of the slanderous words set forth in more than one paragraph of a complaint, the language used in each instance amounting to a charge of perjury in the same judicial proceeding and at the same time, it does not follow that it is essential in this case that a separate demand for damages should be (601) appended to each of such paragraphs. Harris v. Sneeden, supra.

The rule referred to in the demurrer is not susceptible of the construction that counsel seem to have given to it.

For the reasons given, we think that the demurrer was properly overruled.

Affirmed.

Cited: Gattis v. Kilgo, 125 N.C. 135; Upchurch v. Robertson,127 N.C. 129.