Gillis v. Powell

58 S.E. 1051, 129 Ga. 403, 1907 Ga. LEXIS 389

Opinion

Cobb, P. J.

(After stating the facts.)

1. One ground of the motion for a new trial assigns error upon the refusal of the judge to continue the ease. The complete showing for the continuance is not set out in the ground, but for the evidence introduced on the showing reference is made to the brief of the evidence filed- in the case. Under repeated rulings of this court, this ground can not be considered. This court will not consider an assignment of error in a ground of the motion for a new trial which is not complete in itself, or which may not be rendered complete by an exhibit to the motion itself. 'It is not -permissible to refer to the brief of the evidence, or other parts of the record, in order to complete the ground of the motion.

2. Another ground of the motion complained of the ruling of the judge allowing the amendment to the petition. An assignment of error of this character can not properly be made a ground of a motion for a new trial. It is only necessary to cite one of the more recent cases on this question. Lowery v. Idleson, 117 Ga. 778 (45 S. E. 51).

3. Another ground of the motion for a new trial assigns error upon the judgment overruling the demurrer to the petition and motion to dismiss the same. Such a ruling can not properly be made a ground of a motion for a new trial. It is only necessary to cite one of the more recent decisions on this question. Willis v. Harrell, 118 Ga. 906 (45 S. E. 794.)

4. Error is assigned upon the refusal of the judge to allow the defendant to prove, by himself, when he was on the stand, that he was seventy-two years of age. The court rejected this testimony, upon the ground that it was irrelevant. The contention is that the evidence should have been admitted to be considered by the jury on the question as to whether, considering the age of the defendant in connection with the other circumstances in the case, the words uttered by him were uttered with malice, or, as-contended by the defendant, in good faith and for the purpose of enforcing a criminal law in a matter where he was interested. «While we do not think that it would have been erroneous for the-judge to admit the testimony, still we do not think that his refusal to do so was an error of such a character as would necessarily require the granting of a new trial. The defendant was-before the jury. They could judge themselves as to his condition, both mental and physical; and these were proper matters for them to take into consideration. The exact number of years that he had lived would not have aided them materially in determining whether, from his condition, mental and physical, and his temperament, as indicated by his manner and testimony, the charge made against the plaintiff was likely to have been malicious or made in good faith. The important elements in the case were before the jury; that is, the general appearance of the man, the state of his mind and body, and his temperament, as indicated by what he said and the manner in which it was said.

5. The original petition alleged the words to be, “S. A. Powell swore a lie,” and that they were uttered on August 2, 1903. These words standing alone would import the crime of false swearing rather than perjury. Smith v. Wright, 55 Ga. 218. But it is also alleged the words were uttered immediately after the trial of a case between the parties, and the inference is that the plaintiff had testified as a witness; and words of the character indicated, uttered in such circumstances, would be equivalent to a charge of perjury. The amendment alleged the words spoken were, Powell “swore a lie, and I will prosecute him when the grand jury meets.” These words import the offense of false swearing, and there is nothing to indicate what were the circumstances in which they were uttered. The witness Branch testified that he was the justice who tried the case between the parties, and that when Gillis, who had lost the case, paid the costs, he said that Powell swore a lie and wanted him “to bear it in mind,” but did not say anything about the grand jury. Another witness, Taylor, testified that, soon after the trial in the justice’s court, Gillis said to him that Powell swore a lie and he was going to get a bill against him when the grand jury met. Hall, a constable, testified that he was present when Gillis paid the costs to Branch, and he heard him say to Branch that Powell had sworn falsely and he was going to prosecute him, and that he wanted Branch to bear in mind what Powell had sworn. The defendant testified that he remem'bered the conversation with the justice of the peace, and that he intended to have the plaintiff arrested for perjury, and he told the justice to be sure and keep in mind what the plaintiff had testified. He also swore that he presented the case to the grand jury, but they did not act on it. He said that to the best of his recollection he told the justice that, he intended to prosecute the plaintiff for perjury, and he wanted him to keep fresh in his mind all of the testimony, in the case; that he did not want to injure anybody, but that the plaintiff certainly owed him on the notes that he had sued on. He denied having any conversation with the witness Taylor. It appears, from- the evidence, that in the suit in the justice’s court the plaintiff in the present case was the defendant, and that he swore that he had paid the notes. That he had not paid them with money is now admitted; but it is claimed that what was meant by payment in the testimony thus delivered was a transaction between the plaintiff and defendant, which was incomplete at the time of the trial, but which one party considered as satisfying the obligation and the other party did not. The evidence is of such a character as to authorize a finding that each side could be honestly mistaken in their statement when one swore that the notes were paid and the other that they were not. There .could have been an honest difference of opinion as to the legal effect of the transaction as it stood on that day. While all the evidence indicates that the plaintiff in the present case, when he swore that he had paid the notes, was mistaken, and the notes were not paid, the effect of the charge made by the defendant against the plaintiff, when he said that he swore to a lie in the trial, was that he had committed wilful perjury. And there ivas evidence in the present case from which the jury could find that the testimony of the witness, although not true, was not wilfully false. When the character of the words uttered and the circumstances in which they were spoken are considered, the effect of the words was to charge the plaintiff with the crime of perjury. Bryan v. Gurr, 27 Ga. 378; Salmons v. Tail, 31 Ga. 676; Brown v. Hanson, 53 Ga. 632. To utter of another words which impute to him a crime punishable by law is slander, and the wrong thus committed is actionable without proof of special damage. .Civil Code, §¡3837. From motives of public policy, however, the law will sometimes relieve a person who makes a false charge against another from liability for damages. Communications which would otherwise be slanderous are protected as privileged, if made in good faith and in the prosecution of an inquiry regarding a crime which has been committed and for the purpose of detecting and bringing to‘punishment the criminal. Chapman v. Battle, 124 Ga. 574 (52 S. E. 812). There is no crime known to the law which is more odious than the-crime of perjury, and the law authorizes a prosecution for this offense, as well as all others, either at the instance of the person aggrieved or any other citizen who may be interested in the preservation and maintenance' of the law. Therefore, in a well-defined ease, where it appears that the words were uttered in good faith and for the sole purpose of bringing to punishment the supposed perjurer, and the element of malice is not at all present, and the communication is made at a time and place and to a person when all the circumstances indicate purely an intention to vindicate the law, one who makes a statement'which may afterwards develop to be false will'be protected and not rendered liable to be mulcted in damages. But one who intends to prosecute another for the crime of perjury must make known his intentions in reference to the same at a time and place and to persons that are proper. If made at other times and other places and to other persons, the communication is made at his peril; and if what is stated is false, he must bear the consequences resulting from the slander. See, in this connection, Atlanta News Pub. Co. v. Medlock, 123 Ga. 714 (51 S. E. 756, 3 L. R. A. (N. S. 1139); Holmes v. Clisby, 121 Ga. 241 (48 S. E. 934, 104. Am. St. R. 103); Sheftall v. Central of Ga. Ry. Co., 123 Ga. 589 (51 S. E. 646). Whether the communication is made at a proper 'time and proper place and to a proper person is a question for the jury in the particular case. If the time and place are not proper, there is no privilege. If the person is not one to whom the communication is necessary to be made to effectuate the purpose of vindicating the law, there is no privilege. If the time and place and person are all appropriate, but the manner and form of the communication are such as to indicate, not a desire to vindicate the law, but to injure and defame the person whose name is disclosed in the communication, the privilege does not exist. The privilege is given by the law for a wise purpose, and the law will not tolerate its being used to vent the malice of any individual, even though he may be one who thinks he has been grievously wronged.

6. The judge charged the jury, “You have the right to show that the language was used by admissions or confessions — either in the pleadings or from the witnesses.” The error assigned upon the charge is, that, as there were no admissions in the pleadings, it was misleading to the jury and prejudicial to the defendant. The answer and amended answer each denied that the defendant had uttered the words charged in the petition, or any words of like import. It is true that the answer alleged that the defendant was ready to prove the truth of any words that may have been spoken by him on the day of the trial in the justice’s court, but there was no evidence as tQ any words spoken on that day. Properly construed, we do not think that the answer contained any admission that the words charged in the petition were uttered by the defendant. In the circumstances of the present case, we are cf the opinion that this erroneous interpretation of the plea was prejudicial to the defendant.

7. The judge charged the jury: “In considering that question [the question as to whether the defendant used the language that he is shown to have used, bona fide, in an effort to preserve the testimony of the witnesses with a view to instituting a criminal prosecution against the plaintiff], gentlemen, you will take into •consideration the nature of the crime charged against the plaintiff, see what the nature of it was. and see whether the evidence shows that the plaintiff really did commit any crime; see whether he, the defendant, had the knowledge of whether the plaintiff had really committed the crime of perjury; see whether it rested with the defendant in this case, or whether he- — -so as to determine— see whether he had personal knowledge of it or whether he didn’t have personal knowledge of it, so as to see whether he was acting in good faith, bona fide, in good faith, intending to institute a prosecution against. the defendant for perjury, or whether he was simply using that as a slander to perpetrate the slanderous words or defame the character of the plaintiff.” This charge is assigned as error for various reasons, but it is only necessary to refer to the assignment setting up that the effect of the charge was to deprive-the defendant of his main defense, that of privileged communication. The judge in effect says that Gillis would not be protected under his plea of privilege unless Powell had really committed the: crime and Gillis had personal knowledge of it. The plea of privilege is broader than this. If Gillis had no personal knowledge in reference to the matter, but honestly and in good faith believed that Powell was guilty of perjury, and there were reasonable and probable grounds upon which to base this belief, and he took steps to inaugurate a prosecution with no other purpose than -a. vindication of the law, words spoken by him at proper times and places and to proper persons, for the sole purpose of effectuating the prosecution, would be privileged, even though it should finally develop that Powell was innocent. There is in this charge, and also in some other portions of the charge, an indication that the judge had construed the answer as in the nature of a plea of justification; and some of the instructions place upon the defendant the onerous burden resulting from such a plea. As we construe the answer, it contained both a general denial and a plea of privilege. It is true these are inconsistent, but that is permissible under our practice. The defendant in effect says, “I do not remember what I said, but I did not say what is charged, and whatever I did say was solely for the purpose of preserving evidence to-effectuate a prosecution for crime.” The plea of privilege should have set forth the words admitted to have been used, and then ah leged the circumstances showing that they were privileged; but this, defect was one that was subject only to special demurrer, and the judge did not err in submitting the defense of privilege to the jury. In fact it would have been erroneous to do otherwise, as the evidence under the plea had been admitted without objection. Bryan v. Gurr, 27 Ga. 378.

We think the errors.above referred to are such as to require .a reversal of the judgment, in order that the defendant may receive the full benefit of his plea of privilege. If, on another trial,’ it should appear that the defendant had probable cause - to institute a prosecution of Powell for perjury, and what he said in reference to his testimony at the trial in the justice’s court was said in good faith and without malice and to proper persons, at proper times and places, he would be entitled to a verdict in his favor. On the other hand, if it should appear that he was animated by malice in his statements, the plaintiff would be entitled to recover. There are assignments of error upon the charge other than those that have been commented upon, but we do not consider it necessary to discuss them in detail. From what has been said it can be readily seen whether any of these instructions will be appropriate to the case on another trial.

Judgment reversed.

All the Justices concur.