Kern v. Towsley

51 Barb. 385, 1867 N.Y. App. Div. LEXIS 220

• Court: New York Supreme Court
• Decided: December 2, 1867
• Status: Published

Opinion

By the Court, James C. Smith, J.

If words are spoken of a person, charging him in express terms, with the crime of perjury, they are actionable without proof of /any extrinsic facts to show their meaning. Such words necessarily import that the person charged has sworn falsely, upon a material point, in a judicial proceeding before a court or officer of competent jurisdiction. So, if the words uttered, although not charging perjury in express terms, necessarily imply that offense. (3 Cai. 73. 5 Cowen, 513. 8 Wend. 573.) In like manner, if the words used to express the charge, are such, in the sense in which they would naturally be understood, as to convey to the minds of those to whom they are addressed, the impression that the plaintiff had committed perjury, and that the defendant intended to be so understood by those who heard him, such words will of themselves, warrant a verdict for the plaintiff, in case the jury find that they were uttered with the intention above stated and were so understood. (Power v. Price, 16 Wend. 450.) In neither of the cases above supposed, is it necessary to give any other evidence of the fact that a suit was pending, or that the plaintiff was sworn, than is contained in the words themselves. (Jacobs v. Fyler, 3 Hill, 572. Opinion of Beardsley, J. in Emery v. Miller, 1 Denio, 208.)

In the present case the plaintiff testified respecting the words, and the occasion when they were spoken, as follows: “I met defendant and demanded of Mm a bed that he refused to give up. I told him I should sue .him for it,” and said, “ I should not think you would want another law suit, for you have lost the one you have just had.” Then he said, “Yes, your false swearing at that trial.” “ I then told him he had better not accuse me again of swearing false.” Then he said, “ Any man who professed to be a Christian, as you do, and went into the box and swore false as you did at that trial, had better join the church once more,” or “ a few times more.” After that he repeated five or six times in the same conversation that I had sworn false in the suit. Once he said “ that the folks who belonged to the church, and built tall steeples, thought they could swear false, or do any thing they had a mind to.”

Here, as was said in Jacobs v. Fyler, the slander admits, that a suit was pending; and it is to be intended that what the plaintiff swore to was material. The defendant’s counsel urges that there is no evidence that the suit was in a court of competent jurisdiction, or that the plaintiff swore falsely with a corrupt intent. Upon those points, however, the words themselves are sufficient to warrant a finding in favor of the plaintiff, under the rules above stated. The cause was submitted to the jury in accordance with these views.

Ho question arises upon the bill of exceptions, as to the sufficiency of the complaint. The testimony was received without objection, and the defendant’s counsel did not suggest that the complaint was insufficient, until after the plaintiff had proved his case and rested. The defendant’s counsel might then have raised the question as to the sufficiency of the complaint, by a motion to strike out so much of the testimony as tended to prove matters not alleged in the complaint, but he omitted to do so. The supposed defects in the complaint were stated as a ground for the motion for a nonsuit, but as the testimony given without objection was sufficient to establish a cause of action, that motion was properly denied.

[Monroe General Term, December 2, 1867.

J. C. Smith, E. D. Smith and Johnson, Justices.]

The plaintiff is entitled to judgment on the verdict.

Judgment for the plaintiff.