Power v. Price , 16 Wend. 450 ( 1836 )

The following opinions were delivered:

By the Chancellor.

The errors in this case are alleged to lie in the charge of Judge Howell to the jury, upon the trial of the suit in the court of common pleas. I cannot concur with the justice who delivered the opinion in the supreme court, that the charge was wrong even in an immaterial point. The suit was an action of slander brought against Power, for imputing to Price the crime of perjury in the testimony which he had given in a former suit, which Power had brought before a justice against the trustees of a school district. The question to be tried in the suit, therefore, was not whether Price had testified before the justice to facts which would have subjected him to punishment for perjury, if his testimony in that respect was false ; but it was, whether the defendant had imputed to him the crime of perjury by the words charged to have been spoken in relation to his testimony in that suit. In other words, whether the declarations of the defendant in relation to the testimony of Price in that suit were such, in the sense in which they would naturally be understood, as to convey to the minds of the persons to whom or in whose presence those declarations were made, the impression that Price had committed perjury, and that the defendant intended to be so understood by those who heard him. In this view of the subject, although the defendant charged the plaintiff with having sworn false in a particular part of his testimony, yet, as there was nothing stated from which the hearers could suppose that this part of the testimony had nothing to do with the suit in which he was sworn as a witness, the imputation of perjury was just as plain as if he had said he had sworn false on the trial, without explaining wherein he had sworn to a lie. It was therefore incumbent on the defendant to prove that the words spoken by him related to an immaterial fact, not in 'issue in the cause before the justice, and that he did not intend to=jimpute perjury to the defendant; or that the language used by him was such as to convey the impression to those who heard him, that the matters in which the testimony was alleged to be false, were immaterial to the issue, and could not therefore amount to perjury, even if the witness had intentionally sworn false, or wilfully suppressed the truth in relation to those matters. Even as to the words spoken in the presence of persons who were at the trial, I think it was incumbent upon the defendant to show that the part of the testimony which was alleged to be false, and a lie, was not material to the issue in the cause, as it is not a necessary or a probable presumption that every person who is casually present at the trial of a suit is sufficiently acquainted with the case, and the state of pleadings therein, to be capable of forming a correct opinion as to what parts of the testimony are material and what are wholly irrelevant. Most of the slanderous words, however, were spoken to or in the hearing of persons who were not present at the trial, and who could not therefore have had any ground for supposing that the witness had been sworn and examined as to facts which were wholly immaterial to the cause, or that the matters as to which the defendant alleged he had sworn false were of that description. The rules of law are, in theory at least, supposed to be founded upon the principles of common sense ; and I put it to the members of this court, as men of sense, whether, if one man, in speaking of the testimony of another, upon a trial which had previously been had, should say that the witness had sworn false, or lied, or sworn to what was not true, upon such trial, in relation to a particular fact, they would not, in the absence of any thing to show that such fact was not material in the suit, naturally presume and understand that he intended to impute perjury to the witness. The law is now well settled in this state, that in actions of slander the words spoken are to be taken and understood according to their plain and natural import, in the connection and in reference to the subject matter of the conversation in which they are used; and that they must be understood by the court in the same sense in which other people would ordinarily understand them. In Coleman v. Godwin, 3 Doug. 91, Buller, justice, says, the meaning of words is to be gathered from their common import, and not from any technical legal sense. And in the same case, Mr. Justice Ashurst uses this strong language in reference to the technical quibbles by which, in some of the earlier cases, the slanderer had been permitted to escape the legal consequences of the obvious and natural meaning of his slanderous expressions: “ The effect of the words on the hearers is what is to be considered, and the determinations in the old books are a disgrace to the law. If a party charges a witness with having sworn false in relation to a particular fact in a cause, which fact would not necessarily be immaterial and irrelevant, the natural effect of the words spoken is to convey to those who hear them the impression that the witness has committed perjury; and if the defendant wishes to show that he did not intend to impute the crime of perjury to the plaintiff, but merely that he had perverted the truth in relation to an immaterial fact, as to which his oath did not bind him to tell -the truth, the burden of showing that the fact testified to was not material to the issue, arid that it was not intended to impute to the defendant false swearing in the suit, in the ordinary sense and meaning of the term, rests upon the defendant.”

In this case, however, the court was dearly right in instructing the jury that the testimony given on the former trial was proved to be material. The court, in this part of its charge, did not take from the jury the decision pf any matter of fact which was proper for their cognizance: it merely decided a question of law, arising upon the proof of facts as to which there was no dispute or contrariety of testimony. This part of the charge must be taken in reference to the facts proved by Hubbell, the lawyer who was present at the trial before the justice; who showed conclusively that the question whether the annual district meeting had adjourned sine die before the resolution to hold a special meeting was adopted, was a material fact in controversy before the justice; and it was in relation to the testimony of Price as to his knowlege of such adjournment having taken place, that the defendant charged him with having sworn false and lied, in giving his testimony before the justice. The" facts being undisputed, it was a question of law which belonged exclusively to the court to decide, whether those facts proved that the testimony of Price in relation to the adjournment was material, so as to have constituted the crime of perjury if he had wilfully perverted the truth in the manner charged against him by the defendant. If the court, upon an application of the counsel for the plaintiff for that purpose, had refused to instruct the jury that the testimony of Hubbell proved the materiality of this part of Price’s testimony, the plaintiff might have taken a valid exception to the refusal of the court to instruct the jury upon this point of law.

The judgment in this case was therefore not erroneous, and should be affirmed.

By Senator Edwards.

This case seems to present two important questions: 1. Was the plaintiff bound to prove, affirmatively, that the testimony he gave in the justice’s court, to which the defendant alluded when he charged him with swearing to a lie, was material to the issue tried in that court? and if he was bound so to prove it, 2. Who must judge of the materiality of that testimony, the court or the jury ?

The rule has been long since well settled, that to constitute slander, the charge must be such, if true, as will subject the party to an indictment for a crime involving moral turpitude, or to an infamous punishment. Brooker v. Coffin, 5 Johns. R. 188. And in the case of Rouse v. Ross, 1 Wendell, 477, the court say, the test is not whether the witness believe his testimony to be material; but whether, if false, he can be indicted for perjury. Let us then apply this test to the present case: Could Price have been indicted for perjury, had he sworn to a lie in the justice’s court, without its being proved also that his testimony was material to the issue then on trial ? Most clearly not. Then it follows of course, that the defendant has charged him with no crime for which he could be indicted, unless he proves the fact that the testimony alluded to, in the charge alleged to be slanderous, was material to the issue on the trial in the court to which it refers. In the case of Bullock v. Coon, 9 Cowen, 31, the court say, “ If words spoken are not actionable in themselves, but become so by the circumstances under which they were spoken, those circumstances must be averred in the declaration and proved on the trial.” In Chapman v. Smith, 13 Johns. R. 81, after verdict the court took it for granted that it must have been proved the words were spoken of material testimony, or the verdict could not have been obtained; and in the case of Crookshanks v. Gray, 20 Johns. R. 349, the court say, “ But if it turns out in proof that the defendant did not speak of the whole evidence given, as false, but merely of that part which related to the distance, it therefore became necessary for the plaintiff to show that this was material on the trial. If it has not been done, the plaintiff has not laid a foundation for a recovery, inasmuch as the evidence averred to be false is not shown to be material.” It appears to me needless to multiply authorities to show a principle of law so well established and so universally acknowledged as the one recognized by the decisions to which I have referred. There can be no doubt, therefore, but that the plaintiff was bound to show, affirmatively, that the testimony given by him before the justice was material to the issue then on trial. It follows, of course, that the court erred in charging the jury that it was not necessary for the plaintiff to prove, affirmatively, that the testimony given by him on the former trial was material. On this point the supreme court appear to have arrived at the same conclusion.

The supreme court however add, we are of the opinion that the court were right in saying, the evidence before them showed that the testimony charged to be false was material to the issue before the justice ; and when there is no dispute as to facts, whether material or not is a question of law. From this part of the decision of the supreme court I entirely dissent, and this brings me to the second point suggested for consideration. Is the question of materiality a subject for the court or for the jury ? The principle is recognized and maintained, in the several decisions of the supreme court to which I have referred, that it is necessary for the plaintiff to prove the materiality of the testimony in the justice’s court, to which the words alleged to be slanderous refer ; and in the decision now under review, the supreme court say: “ The court undoubtedly erred in laying down the position, that the plaintiff was not bound' to prove that the testimony which he gave, on the trial before the justice, was material to the point in issue, in respect to which the charge of false swearing was made by the defendant.” If it is a matter of testimony, a fact the plaintiff is bound to prove, and so .important that he cannot maintain his action without proving it, who are to weigh the testimony and determine whether the fact is proved 1 Is it not addressed to the jury? and are not they to deliberate upon it, and to be satisfied whether it proves this fact that the testimony was material, and as they shall satisfy themselves, from their own deliberations, find their verdict? Could they conscientiously discharge the duty their oath imposes upon them, by relying upon the opinion of the court upon a matter of fact ? a matter of fact which appears to constitute the gist of the action, without the proving of which no recovery could be had. If the court can take from the jury the right to determine whether a fact so important is proved, they can take from the parties the whole benefit of a jury--for by weighing this testimony, and deciding this question, it would be for the court to say, instead of the jury, whether the plaintiff should recover or not, in actions of this description. In the case of Greenleaf v. Birth, 9 Peters, 299, the court say we cannot legally give any instructions which shall take from the jury the .right of weighing the evidence and determining what effect it shall have; but in the case now under review, the court clearly did give instructions to the jury which took from them the right of weighing the testimony as to this important fact; for the common pleas say, “ The question whether the plaintiff was bound to prove the materiality of the testimony given by him on a former trial, did not seem to arise in this cause, because, in the opinion of the court, the testimony given by the plaintiff, on the former trial, was proved to be material;” and thus is clearly substituted the opinion of the court for the verdict of the jury, in determining whether a matter of fact is proved, without the proving of which the action cannot be maintained ; and the jury, instead of finding the facts on which they are to render their verdict, merely make an assessment of damages. I cannot admit the court possessed the power they exercised in their charge to the jury, and I am therefore of the opinion that the charge was erroneous in both of the particulars in which 1 have considered it, and that the judgment of the supreme court should be reversed.

On the question being put, Shall this judgment be reversed? the members of the court voted as follows:

In the affirmative—The President of the Senate, and Senators Beckwith, Edwards, Fox, Huntington, Lounsberry and Tracy—7.

In the negative—The Chancellor, and Senators Armstrong, Downing, Hunter, Gansevoort, H. F. Jones, J. P. Jones, Mack, Maison, Powers, Seger, Speaker, Sterling, Wager, and Willes—15.

Whereupon the judgment of the supreme court was affirmed.