Gordon v. Gordon

13 Mo. 215

• Court: Supreme Court of Missouri
• Decided: January 15, 1850
• Status: Published

Opinion

BIRCH, J.

This was, on the trial, an action on the case for words spoken; no testimony having been given upon the count for libel. The count for'verbal Blander charged the defendant with having said that the plaintiff had “ sworn, a lie,” averring somewhat loosely in the colloquium and innuendo, that the charge was made and understood with reference to certain testimony given by the plaintiff “ on points material” to a charge which had theretofore undergone investigation before the grand jury of Polk county, and was intended and understood to impute to the plaintiff the crime of perjury.

The defendant having pleaded the general issue, and also a special justification; it was proven upon the issues thereupon joined, that the defendant had said of the plaintiff, that if he (plaintiff) had sworn what he (defendant) had heard he had, he (plaintiff) had sworn a lie ; and upon being answered by the grand juror with whom he was conversing, that he (plaintiff) had sworn pretty much as he (defendant) had heard and just related, the defendant called, the attention of others who were near by, and pronounced the charge direct that the plaintiff had .“sworn to a lie.” There was other testimony designed to show that the defendant was understood by others present as having made the charge hypothetically, or “ conditionally ” only, and this was the substance of all the evidence.

The court instructed the jury to the effect, that if, after taking into consideration everything which was said by'the defendant at the time of speaking the words, they believed they were spoken hypothetically, or were not designed to charge the plaintiff with perjury, they would lind for the defendant ; but that if they believed otherwise, and that they were spoken with reference to the testimony given hy the plaintiff before the grand jury, touching a prosecution pending before that tribunal, they would And for the plaintiff'. No objection was made to the instructions, as indeed none could have been reasonably entertained, at least on the part of the defendant.

.The jury having found the' issues for the plaintiff, and assessed damages accordingly, the defendant moved to set aside the verdict and award a new trial, upon the grounds that it was against the testimony, the instructions apd the law ; and for overruling that motion, the defendant has made himself plaintiff in error in this court.

No proper foundation having been laid during the trial below for the application of the authorities to which we have been referred, they need not, of course, he considered or remarked upon.

We consider that the point heretofore passed upon by this court, has been well renewed by the counsel for the defendant in error, namely, that as the instructions upon which the case was committed to the jury, were not objected to at the time, and in the motion for a new trial, the verdict which was found upon them cannot now he disturbed. The legal reliances and objections of parties must of course be properly brought to the consideration and submitted to the judgment of the court below, before this court can have any proper appellate jurisdiction of them.(

a)

As to the verdict of the jury, it is of course not material whether they found the issue as we would have done, provided there was evidence (as there was) upon which they might find as they did. Whilst the Constitution and the laws continue so justly to regard the concurrence of the jury box as a safer and more reliable arbiter of the facts in issue than the bench can be, the case must be a strong one, indeed, in which this court would overturn, not merely the finding of such a tribunal, bttt the subsequent acquiescence of the judge who tried the cause. Upon the whole case, therefore, the judgment of the Circuit Court is affirmed.

(a) Floersch v. Bank of Mo., 10 Mo. R. 515; v. Russell, 30 Mo. R. 498; Devlin v. Clark, 31 Dozier Mo. R. v. Jerman, 30 Mo. R. 216; Thompson 22; Calvert v. City of Alexandria, 33 Mo. R. 149.