Summary
In Jenkins v. Cockerham, 23 N.C. 309, it is held that the plea of justification must contain all the averments which, if true, constitute the crime of perjury.
Summary of this case from Moore v. EdmistonOpinion
(December Term, 1840.)
1. Parol evidence may be received to show when a writ issued. The act of Assembly directing the clerk to mark the day of issuing process is only directory, and does not exclude other evidence.
2. In an action of slander the defendant cannot, to support his plea of justification, give evidence of transactions or conversations between himself and others, to which the plaintiff was not privy.
3. In an action of slander, in which the defendant is charged with having imputed perjury to the plaintiff, the plea of justification is not sustained if the jury are satisfied that the plaintiff was honestly mistaken in what he swore to. In such an action the plea of justification must contain all the averments which, if true, constitute the crime of perjury.
ACTION on the case for slander, tried at Fall Term, 1840, of HAYWOOD, before Bailey, J. The declaration set forth, in substance, that the defendant had charged the plaintiff with swearing to a lie, upon the trial of an indictment against the defendant for a misdemeanor. The defendant pleaded the general issue, statute of limitations, and justification. The plaintiff proved the speaking of the words by the defendant, and then offered to prove by parol the day on which the writ issued, there being no date of its issuing marked upon the writ. The defendant objected to this evidence, but it was admitted by the court.
Francis for plaintiff.
No counsel for defendant.
The defendant, to sustain his plea of justification, offered proof of what the plaintiff swore, upon the trial of the indictment against him, the defendant, for the purpose of showing that the plaintiff swore falsely and corruptly. It was in proof that the defendant Cockerham had issued his warrant as justice of the peace against one George Southerland and Ann Chambers, charging them with fornication (310) and adultery; that he examined witnesses touching their offense, and caused them to enter into recognizances with sureties for their appearance at the next county court; that the warrant and recognizances were placed in the hands of one Benjamin M. Enlow, deputy sheriff, by said defendant, with directions to be delivered to the county attorney; that the plaintiff was one of the sureties of the said Southerland and Chambers; that afterwards, on the same day, the warrant and recognizances were burnt by the said Enlow, Southerland, and Chambers. A short time before they were burnt, an agreement was made to burn the papers, the plaintiff being present and not objecting.
The defendant was indicted for corruption in his office as a justice of the peace, in procuring and directing the papers to be burnt, etc. The defendant proved that the plaintiff swore upon the trial of this indictment that he, the defendant Cockerham, examined some of the witnesses before him on the trial of Southerland and Chambers, and, before he concluded the examination of all the witnesses, stopped and said there was no evidence to bind them over to court. The plaintiff furthermore swore that he and the defendant, a few minutes after the trial, met under a tree, and the defendant then stated to him that there was no evidence to bind the parties; that it would become a county charge, and that the warrant and recognizances might be burnt. The defendant then offered proof that, when he stopped the examination of the witnesses aforesaid, he said he had sufficient proof to bind the parties, and he did bind them. The defendant's counsel then proposed to show that Cockerham commenced a prosecution against Enlow and Southerland for burning the papers, before the prosecution was commenced against him; and also proposed to show that the defendant was applied to, in a short time after the conversation with Jenkins, he (Jenkins) not being present, by one Angel, to permit the parties to compromise and stop the proceedings against Southerland and Chambers, and that he refused. This evidence was objected to, on the ground that the prosecution instituted by (311) the defendant was not against the plaintiff, and that the declaration proposed to be given in evidence was not in the presence of the plaintiff. The evidence was rejected by the court. His Honor then charged the jury that if the words contained in the plaintiff's declaration were spoken by the defendant to the plaintiff, and that within six months of the issuing of the writ, they should find a verdict for the plaintiff, unless they should be satisfied that the defendant had sustained his plea of justification; that if the plaintiff, in what he swore on the indictment, was mistaken, but not willfully and corruptly so, the plea was not sustained; but that, if the plaintiff had sworn falsely and corruptly, they should find for the defendant. There was a verdict for the plaintiff. A motion for a new trial was made by the defendant's counsel because of the rejection of proper testimony, and especially upon the ground of misdirection by the court. He contended that if the defendant proved that the plaintiff had sworn falsely, his plea of justification was sustained, and it was not necessary for him to prove that he swore corruptly and falsely, but that it was for the plaintiff to show that, although mistaken, he was not corrupt. The motion for a new trial was overruled and judgment rendered for the plaintiff from which the defendant appealed to the Supreme Court.
Three questions arise in this case: First, whether parol evidence could be received to show when the writ issued. We are of the opinion that the court was correct in overruling the objection to this evidence. The act of Assembly directs the clerk to mark the day of issuing process; this is only directory under a penalty; there is nothing in the act confining the proof of the time to the mark of the clerk on the writ. It was a fact to be proved by the best evidence the nature of the case admitted. Boyden v. Odeneal, 12 N.C. 171. Secondly, to support the plea of justification, the defendant tendered evidence to show that he had commenced a prosecution against Enlow and Southerland for burning the papers, before the prosecution had been commenced against him. And he also proposed to show that he (312) was applied to by one Angel to permit the parties to compromise and stop the proceedings, and that he refused; and this, a short time after the conversation with Jenkins, but he, Jenkins, not being present. We are of the opinion that this evidence was properly rejected. Hamilton v. Smith, 19 N.C. 274, was an action for slander, and we then held that transactions between the defendant and others, to which the plaintiff was in no way privy, were not admissible in evidence against the plaintiff. In Murphy v. McNeil, 19 N.C. 244, we held that one party cannot give in evidence a conversation between himself and a third person in the absence of the other party. In Roberson v. Devane, 3 N.C. 154, it was held that after declarations of a party shall not be received to explain his former transactions. These authorities induce us to think that the decision of the judge was correct. Thirdly, the judge charged the jury that if the plaintiff was mistaken in what he swore to on the indictment, the plea of "justification" was not sustained. We hold that the judge's instruction in this respect was correct. The defamatory words complained of charged upon the plaintiff the crime of perjury, and the plea of " justification" would have been essentially bad if it had not contained all the averments which, if true, established the crime of perjury — a willful, corrupt, and false swearing. See 3 Chitty on Plead., 1033. And it was essential for the support of the plea to prove all its material allegations.
PER CURIAM. No error.
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