June Term, 1825.
1. Words, to be slanderous, must be spoken with an intent to slander and must be so understood by the hearers.
2. A defendant sued for slander in charging the plaintiff with perjury attempted to justify by proving that in a collateral matter plaintiff had sworn falsely. Held, that perjury may be committed in swearing falsely to a collateral matter with intent to prop the testimony on some other point; but such collateral matter must be material to the point in dispute; if it be to a point, the existence or nonexistence of which cannot affect the question in dispute, it does not tend to prevent the due administration of justice, and therefore is not perjury.
CASE from STOKES for words spoken, charging the plaintiff with having committed perjury in a deposition which he had made.
J. Martin for defendant.
Studdard had given his deposition in a suit in equity between one Campbell and the defendant, in which Studdard swore to a conversation between himself and Linville as to the state of mind of Linville's father, and stated that Linville had told him that his father was not more capable of taking care of his property than a child of 8 years of age.
In reference to this deposition, Linville had said that if he had ever told Studdard so, he must have been out of his senses; that (475) he (Linville) would not have taken the oath for all Studdard was worth. On another occasion he said, speaking of Studdard, "that a man had sworn crooked; it was too weak, and wanted strengthening; he thought a mainspring made of ear leather was as good a thing as could be got"; and on another occasion he said, speaking of the deposition, that "he never had told Studdard, nor any other person, that he, S., had sworn he had; he rather thought if he had he would have sworn false; that he intended to get testimony to do away that of Studdard."
The court instructed the jury that words alleged to be slanderous must, if unexplained, be taken by them in their common and ordinary sense: how would those standing by and hearing them understand them? If they should believe that it was the intention of the defendant to charge the plaintiff with perjury, and the words he made use of were such as to convey such intention to the minds of the bystanders, that they would be slanderous, and entitle the plaintiff to a verdict. They were the exclusive judges of the intention of the defendant in speaking the words in the present case.
In the course of the trial defendant, in support of the plea of jurisdiction, proved that when Studdard, in giving his deposition, related his conversation as to old Linville's state of mind; the defendant asked him where they were when it took place, and how they were employed, to which Studdard replied, they were "on the south side of a spring running off the land which defendant had purchased of Schweinitz, with a pocket compass." Linville then asked Studdard whose compass they had obtained, Studdard replied, Darius Mastin's. Darius Mastin was acting as clerk to the magistrates who were taking the deposition, and instantly denied that he had loaned Studdard a compass. Studdard then said that he had obtained it from Matthias Mastin, the father of Darius. On trial both Matthias and Darius Mastin swore that they had not, (476) either of them, loaned Studdard the compass.
Upon this part of the case the jury was instructed that a witness under examination could be guilty of perjury as well in a matter that was collateral to the main issue as in the main issue itself; that if he swore falsely in a collateral matter with the intention thereby to confirm and strengthen his evidence upon the main point, it was perjury in him if done knowingly; that if the defendant had satisfied them that the plaintiff, in that part of his oath relative to the compass and the survey, had knowingly sworn falsely with such intention of thereby giving greater effect to his oath as to the main fact, that it would be a complete justification. If, on the contrary, they should be of opinion that though that part of the oath was false, yet, that the plaintiff in taking it was influenced by no such corrupt motive, it would not amount to a justification, but would go in mitigation of damages; and of this intention they were the judges.
A verdict was returned for the plaintiff, assessing his damages at $10. The defendant moved for a new trial because of misdirection in matter of law and a finding contrary to evidence. New trial refused, judgment, and appeal.
Three reasons are assigned upon the record wherefore there (477) should be a new trial. We can only notice the first and third, the second being for error in fact. The reason first assigned is that the judge in instructing the jury that if they believed it was the intention of the defendant to charge the plaintiff with perjury, etc.; that he ought to have instructed them that if they believed that the defendant meant to charge the plaintiff with perjury, then, etc. The difference is scarcely perceptible. In fact, I think there is none. But take it as the defendant would have us, viz., that the jury understood from it that slander consisted in the intent to utter slanderous words, although the words might not be understood by the bystanders (which is a very forced interpretation). This definition is abundantly corrected by the other parts of the charge, for throughout he refers the slander to the intent of the speaker and the understanding of the hearers. But upon the words themselves the defendant's construction is not warranted. There is no substantial difference between intending to charge and meaning to charge. The latter word is not more referable to the hearer than the former. They both refer to the speaker, and it was to his intent or meaning that the judge was then (478) calling the attention of the jury.
Upon the third reason, I think the plaintiff and not the defendant has ground of complaint. Upon this point the judge informed the jury that a witness could as well be guilty of perjury in a matter that was collateral to the main point as on the main point itself; that if he swore falsely in a collateral matter, with an intent to confirm and strengthen his evidence upon the main point, it was perjury if done knowingly; that if the defendant had satisfied them that the plaintiff, in that part of his oath relative to the compass and survey, had sworn falsely, knowingly, with such intention of thereby giving greater effect to his oath as to the main point, that it would be a complete justification; but if in taking such oath he was influenced by no such corrupt motive (to wit, that of giving greater credit to his false oath on the main point), it did not amount to perjury. The intent to prop the false oath on the main point, and not the materiality of the fact sworn to, is made the essence of the crime of perjury. Perjury is an offense against the due administration of justice. The false oath must be material to the point about which the oath is taken; if believed, it must prevent the due administration of justice; it must either be to the very fact in issue or to some fact relevant thereto — that is, to some fact from which the jury may lawfully infer the fact in issue. And this relevancy is matter of law; the inference is matter of fact. Whether the survey was made, and whose compass was used, was neither the fact in issue, nor relevant thereto; whether the witness gave his evidence with an extraordinarily grave and solemn countenance with intent to strengthen his evidence upon the point in issue, could just as well be assigned as a perjury (6 East), as his statement of facts was totally immaterial, and the facts might or might not exist, without at all affecting the question in dispute. The reasoning of Judge Locke, in delivering the opinion of the late Superior Court in S. v. Strat, 5 N.C. 124, contains principles similar to (479) those contained in the charge of the presiding judge. I think them dangerous and destructive of the landmarks of our law, and thereby rendering the judiciary arbitrary. Had the plaintiff asked for a new trial, he should have had it.
PER CURIAM. No error.