Whitaker v. Carter, 26 N.C. 461, 4 Ired. 461 (1844)

June 1844 · Supreme Court of North Carolina

26 N.C. 461, 4 Ired. 461

SAMUEL WHITAKER vs. DAVID CARTER.

It is no ground for a new trial, that a challenge of a juror by a party for cause has been improperly overruled, where the party has been tried by a jury to whom he had no objection, not having been prevented from exorcising his privilege of challenging four peremptorily.

In an action oil the case for slander, it is competent for *he defendant to shew that the words were uttered before a tribunal of a religious society, of which the plaintiff and defendant were both members, for the purpose of disproving malice. But the decision, of such tribunal is incompetent evidence.

On the trial of an action for slander in charging the plaintiff with perjury, it is not competent for the defendant to give evidence of any other perjury than that laid in the declaration, and affirmed to he true by a plea of justification.

In a declaration fox slander in charging the plaintiff with perjury, where it is alleged that the plaintiff had been in a certain suit sworn and examined on oath as a witness &e., it is not necessary to state what he testified on suclx trial. At all events snch an objection comes too late after verdict.

The cases of the State v Arthur, 2 Dev. 217, and State v Twitty, 2 Hawks' 449, cited and approved.

Appeal from the Superior Court of Law of Wake, at Spring Term, 1S44, his Honor Judge PeabsoN presiding.

This was a case for slander, in charging perjury as to the sale and delivery of two sacks of salt.

Before the jury were impannelled, the defendant challenged Mr. William Page for cause, and proved, by the oath of Page, that the plaintiff’s son had. married the, daughter of a brother of the jutor. The court did not think the-cause sufficient, and the defendant then challenged Page The defendant also challenged Madison Plodge for cause, and proved, by the oath of Hodge, that, during the present term, the plaintiff, knowing that he was one of the original pannell, had talked to him about the case in a way shewing an intention on the part of the plaintiff to prejudice the juror against the defendant. Hodge was under subpoena as a witness for defendant. The court did not think the cause sufficient, as it did not appear, nor was it alleged that the juror was, in fact, prejudiced against the defendant, by this conduct on the part of the plaintiff. The defendant then challenged Hodge peremptorily. The defendant then challenged two others peremptorily — and the jury was impannelled.

Woodall swore, that about July, I8B9, in the store of the defendant, he heard the defendant say of the plaintiff, “ Whitaker can prove any thing, he swore me out of two sacks of salt.” The plaintiff then read a warrant and judgment in favor of Carter against Whitaker, tried before one Cook, a justice of the peace, and proved by Poole, that on the trial, Whitaker produced and swore to, under the book-debt account, an account against Carter in which one of the items was two sacks of salt, and that this account was allowed by the justice as a set off to Carter’s claim. On cross-examination Poole stated, that Carter, at the time of the trial, denied that he had ever got the two sacks of salt, and the parties had angry words. A few days afterwards, Whitaker told this witness, that he had, upon going home, found he was mistaken in the date of his account; that the salt had been sold and delivered in December, 1835, and not in December, 1836, as stated in the account; that he stated further, that, in conversing with his family, he found that he could have proven the delivery by his son Barnes, who was present at. the time it was delivered out of his wagon ; that he also stated, that as to Carter’s saying that he at first said it was lime instead of salt, that made no difference, as the price of two casks of lime was about the same as the sacks of salt; that he drew up the account from memory, his books being at home, arid, although he mistook the date, yet he was careful to put down no items but what were right. Crowder swore, that, in the summer of 1839, he heard defendant say, that Whitaker, the plaintiff, had sworn falsely about two sacks ot salt, and he intended to make him carry them all over Wake county on his electioneering campaign. Joiner swore, that, being the Methodist Circuit rider, the plaintiff and the defendant both being members of his church, he called oh the defendant in the summer of 1839, and requested him to state over the facts, with a view to have the charge investigated by a church meeting. The defendant declined being the accuser, but, at the instance of Joiner, stated, that the plaintiff had, on the trial of the warrant, sworn falsely about the two sacks of salt. Thomas Whitaker swore, that he was present at the church meeting, about the 25th of August, 1839, when the matter against the plaintiff was taken up. The defendant said he was not the accuser, but if the charge was brought forward he -was prepared to prove it. .The charge had before been stated to be. that Samuel Whitaker, the plaintiff, had sworn falsely, in saying that- Carter, the defendant, owed him for the sale and delivery of two sacks of salt, whereas, in fact, Carter owed him nothing, as the salt had'never been sold or delivered. Upon the cross-examination, the defendant’s counsel proposed to ask this witness, whether the trial was gone into, and what was the decision. This was objected to. The court admitted the evidence, so far as to shew that a trial took place, but ruled out the evidence as to the decision, upon the ground that the fact of there having been a trial was relevant to shew, by way of explanation, the circumstances under which the charge was made, but that the result of the trial ought not to influence the case one way or the other. The witness said, that the trial was had, and that the defendant, as a witness, said that the plaintiff had sworn falsely as to the two sacks of salt. Much was said : among other things, he recollected, that the plaintiff said his own son, Barnes, was present when the salt was delivered, and that he had made out his account in haste, and had dated it in 1836, instead of 1835.

The defendant offered in evidence the account which he wai'ranied upon, and the account sworn to by the plaintiff under the book debt law, as a set off on the trial, which con-tajned an item of two sacks of salt at $8, sold and delivered 24th December, 1836, Peleg Spencer swore, that he had acted as the bar-keeper of the defendant, who kept tavern in Raleigh; that on several occasions in 1836 and 1837, he had presented the defendant’s account to the plaintiff, who said he had a due bill on Carter, which ought to be credited, but did not allege any other, claim ; '.that, in' November, 1837, just before the warrant issued, the-plaintiff and the defendant had a conversation in his presence about the matter. The defendant entered a credit for the due bill, and asked if the plaintiff had any other claim. The plaintiff said he ought to be credited for two casks of lime. The defendant asked if that was all. The plaintiff said he had no other charge. The-defen’dant denied ever getting the lime. The plaintiff insisted upon the credit. The defendant said, “I will bring this matter to a close,” and immediately took out the warrant which was returned and tried on that day. The witness said he was about the tavern of the defendant in the Fall and Winter of 1235; that the defendant was in the habit of using but little salt, as he bought bacon and not pork, and usually got salt from some merchant in .town, by the peck or half bushel, as it was needed about the tavern ; that he did not see either two or one sack of salt about the establishment, and thought, from his situation, he would have seen it had it been delivered. Mrs. Beasely swore, that she was the defendant’s house keeper in the Fall of 1835, had charge of the smoke-house, dairy, &c., and did not see either two.or one sack of salt; that she thought, from.her situation, she must have seen it, if it had been about the establishment. She said she was raised in Hyde county, never saw salt in sacks until since the commencement of this action, and from this circumstance, thought, if a sack of salt had been delivered, her attention would have been fixed on it. The defendant called several .witnesses, as to the character of the witness, Woodall, who stated that he was a*man who talked a great deal, the character of telling lies, sometimes in giving exaggerate ed accounts and descriptions of things, and at others in telling falsehoods calculated to do mischief in the neighborhood ; that he had never been charged with telling a lie when on oath or with being dishonest, except in the:particular of not regarding the truth in conversation. The , witness, Justice, said he would not, from his character for lying, believe him oh oath. The plaintiff called Barnes Whitaker, his son, who swore that, some time shortly before Christmas, in 1835, having been to Fayetteville with his father’s wagon, he brought to Raleigh, among other things, three sacks of salt; that he drove the wagon up to the defendant’s house in the cross-street near where Mr. Manly then lived, and, in the presence of his father and the defendant, delivered to the defendant two sacks of salt, and then carried the other sack to Mr. William H. Haywood, sem; that his father was a member of the Legislature at the'time, and boarded with Carter. Mr. Hayioood swore, that, sometime in the winter season, he could not recollect the year, but the Legislature was in session, he saw a wagon in the main street, near the defendant’s house;' that-he asked the witness, Barnes Whitaker, what he was loaded with, the reply was salt. The witness proposed to buy a sack.; Barnes said, he had sent to the State House for his father, who would be therein a few moments; that accordingly the plaintiff’soon came ; that the plaintiff.said there were but three sacks of salt, two he had promised to let Mr. Carter have, and the third he wished to retail. The witness .insisted upon having it, and plaintiff finally agreed. The witness then passed on, and returning in some fifteen minutes, noticed that that the wagon had been moved up into the cross-street, near Carter’s gate, and was in a position to deliver salt or other heavy articles into the yard of Carter.. The witness did not see any delivered, but went home, and his salt was afterwards delivered by Barnes Whitaker. The conversation of this witness with Barnes Whitaker and the plaintiff, about the salt, was objected to by the defendant, but was received.

It was admitted that Ray, a witness who was absent, would prove that about the ] 7th of December, 1835,’he sold and delivered to Barnes Whitaker, a's agent of the plaintiff, 141 bushels of salt.

The witness Crowder, again called, swore that a day or so before Christmas, 1835, having been previously requested by Carter in a written note which he produced, to get for him in Fayetteville, among other articles, three bushels of salt, he called at Carter’s with the salt, when Carter told him he had just got salt of the plaintiff’s wagon, and did not need any more ; he only took one bushel, and excused himself because the witness had not come as soon as he had expected. ■ -

The court charged, as to the words in the church trial, if spoken as alleged, the defence relied on was, that the occasion of speaking them rebutted the malice which the case would otherwise imply. This position was correct, for if a person, acting honestly in the discharge of what his relation in society makes a duty, speaks slanderous words, the inference of malice would be rebutted, and an action of slander could not be maintained, unless it appeared that the person was influenced by malice, and made use of the occasion as a mere pretext to gratify his ill will. The subject could be divided into three classes, in the third of which this case would be included. 1st, if a judge or a magistrate, or a witness in a judicial proceeding, used slanderous words, no action could be maintained, even although there was malice, because the policy of the law protected them. 2d, if a lawyer, or a party managing his own case, used slanderous words, the occasion would protect, unless it was shown that the party went out of the way, and made use of the occasion as a mere pretext for his malice. 3d, if a master in giving the character of a servant, or a parent in warning his son as to his associates, or a member of the church, as the defendant was, accordingto the discipline of the church, acting as the accuser or a witness against another member as the plaintiff was, used slanderous words, the occasion would protect, provided it appeared that he believed the words he used were true, although in point of Let they should not be true, and it did not appear that he was acting from malice. As to the words proven by the witness, Joyner, the same principle would apply, for a person is equally protected in taking the preliminary ste.ps to bring on the trial, as while conducting the trial, provided he is acting honestly in the discharge of what he considers a duty. As to the words sworn to by Woodall and Crowder, if the jury were satisfied that the words were spoken, and that under the ^circumstances they amounted to a charge of perjury in swearing before the magistrate, that the plaintiff'had sold and delivered to defendant two sacks of salt, when,'in truth, the salt was not sold and delivered, and the defendant did not owe for the same, then the plaintiff was entitled to a verdict, unless the defendant has made out his justification.

It had been insisted in the argument, that the justification was sustained on these grounds; 1st, that the date of the account was December 24, 1836, instead of December, 1835. As to this, the pleadings did not put the date in issue. Nor was the date made material by the evidence. So that this ground would not avail. Had the date been put in issue, or been material, as for instance, if December, 1835, would have been too late to admit proof under the book debt law, or if the date would have affected the interest, or if the date in December, 1836, would have excluded the' presumption that it had been 'settled, which presumption would have arisen if dated in December, 1835, or the date been shewn to be material in any way, it would have been- different. 2 That the oath was false in saying, that plaintiff had no way of proving his account except by his own oath. As to this, the pleadings did not put it on issue. The charge set forth in the declaration was perjury as to the sale and delivery of the salt. The plea alleged perjury, in saying that defendant owed for the salt, whereas the salt was not sold and delivered, and of course the defendant did not owe for it. Had the plea alleged perjury in that part of the oath in reference to the inability to prove the' delivery in any other way, it would have been answered, 1st, that it was not responsive to the charge. — 2d, that although material the proof under the book debt law. yet it was not wilfully and corruptly false, so as to amount to perjury, as it was not ghewn that the plaintiff had a motive, although he knew at the time that he could have proven thé delivery by his son, to swear that the salt was not paid for : so that this ground would not avail — 3d, that the defendant did not owe for the salt, as it was not sold and delivered. As to this, if the evidence satisfied the jury, that it was true in point of fact, then the justification would be made ;out. The jury found in favor of the plaintiff. There was a motion for a new trial, which was refused, and judgment being rendered for the plaintiff, the defendant appealed. ■

Badger and W. H. Haywood, for the plaintiff..

John H. Bryan, McRae and G. W. Haywood for the defendant.

RuffiN, C. J.

Whether the challenges of the jurors for cause were improperly overruled or not, is not material in the present state of the case. For the defendant had a trial by a jury, which he accepted as liable to no objection, without challenging peremptorily, or wishing to challenge more than four, the number he may legally challenge without shewing ány cause. The defendant then could have sustained no injury by the disallowing of his challenges; and, upon the principle of Arthur's case, 2 Dev. 217, it is not a ground for a 'venire de novo.

The decision of the religious society was properly ruled out. It was right to receive evidence, that, according to the discipline of the society, the plaintiff was called to answer before the ecclesiastical tribunal, to which, as a member of the society, he was amenable, because it explained the occasion upon which the defendant made the direct charges of perjury on the plaintiff, in swearing that the defendant owed him for two sacks of salt, sold and delivered to him; whereas the plaintiff had never sold and delivered him any salt. It is well settled, that charging a person bona fide with,a ■crime on such an occasion is one of those privileged communications, for which the speaker is not responsible. the proceeding is no further evidence than as it shews, that the defendant was called on, in the discharge of a duty to the society, to make his statement upon that occasion, and, therefore, ought not to be responsible for it in damage to the party, more than if he had made it in a court of justice. But the decision, to which the society came, is not relevant to establish the plaintiff’s ■ guilt of the crime imputed, nor the motive of the defendant in making the same charge at a different time, and undér circumstances which did not render it a privileged communication.

. The court is also of opinion, that the testimony of Mr. Haywood was properly received. The conversation between the witness - and the plaintiff and his son Barnes, was competent, as proving the-fact of the agency thereby created for the son, on behalf of his father, to deliver the salt to the defendant. It is true, the son states, that the father .afterwards •remained, until he, the son, had delivered the salt in his presence. But, still, it is material to the disputed allegation of the plaintiff, that he sold and delivered the salt to the defendant, to shew, that he directed his son, as his agent, and then in possession of the salt, to go with it to the defendant’s house and deliver it to him. It'was likewise competent, as tending to sustain the credit of Barnes Whitaker, inasmuch as the witness, Haywood, proved the statement of the other witness to be true, as far as'any of the circumstances came within his knowledge. It created some presumption, that the other circumstances, not known to Haywood, and which he had no opportunity of knowing, but deposed to by Whitaker, were also true. The relation in which -the witness, Barnes Whitaker, stood to the parties to this suit, and especially to the transaction out of which the controversy arose, namely, the alleged sale-and delivery of the ■ salt, in which,' by his own account, he was a participator, so far exposed him to 'suspicion and discreditable observations, as to render it proper in the court to admit evidence, in support of-his .credit, of this kind. State v Twitty, 2 Hawks 449. The whole cause depended on the veracity of that witness, for he &rec^y proved the truth of the oath of the plaintiff, in which it is alleged he committed the perjury. The defend-aQi attemp£e(j i0 discredit him by the negative testimony of Spencer and Beasly. In reply to that, the evidence given by Haywood and Crowder was cogent to the points, both that Whitaker had intended to swear to the truth, and that he had sworn to it

It is next'objected, that the court erred, by instructing the jury, that the words proved by Woodall and Crowder were actionable, as they do not in themselves import a charge of perjury, and the intent, ought to have been left to the jury. That is precisely what his Honor did. His language'is, that, “ if the jury were satisfied, that the words, proved by those two witnesses, were spoken, and that, under the circumstances, they amounted to a charge of perjury, in swearing that the plaintiff had sold and delivered to the defendant two sacks of salt, then the plaintiff would be entitled to a verdict, unless the defendant had made out his justification.” It is clear, that, what was meant was, that if the jury was satisfied, under the circumstances, that those words, “amounted to,” that is, were intended to convey or express, a charge of perjury, as laid in the declaration, then they should find for the defendant. There is nothing, therefore, in that objection.

But it is further insisted, that the jury ought to have been at liberty to consider, whether the plaintiff was not guilty of perjury in those parts of his oath, in which he stated or is supposed to have stated, that he delivered the salt in December, 1836, and that he could not prove the delivery, except by his own oath — whereas the delivery was in Dec. 1835, and he could have proved the delivery by his own son, Barnes ; and, therefore, that there was error in confining the jury to the particular imputation of perjury, of which complaint is made in the declaration. We think the position entirely untenable. The declaration lays the speaking of certain words, whereby, as it alleges, the defendant meant to impute ,to the plaintiff the perpetration of perjury in this, that the plaintiff had sworn that he sold and delivered to the defendant two sacks of salt, which he never did sell or deliver. To that declaration the defendant pleaded, not guilty; and the jury have found, that he did speak the words, and with the intent stated in the declaration. The defendant also pleaded justification, and therein sets forth the oath of the plaintiff to-have been, “ that the matter in dispute was a book account,- and that the said David Carter was indebted to him the sum of $>14 20 ; and further, that he had no other means to prove the delivery of the two sacks of salt but by his own oath, and that the two sacks of salt were by him delivered to the said David Carter, and charged to him- at the price of $58.” Then the plea proceeds to negative the oath and assign the perjury in these words: ;i Whereas, in truth and in fact the said David Carter, at the time, &c., was not indebted to him the said Samuel Whitaker in the sum of $8, for two sacks of salt, or for any other goods, wares, or merchandise, sold and delivered by the said Samuel to the said David: And whereas,- in truth and in fact, the said David was not then indebted to said Samuel in any sum whatsoever, on any account whatsoever; and the said Samuel did thereby upon' his said oath commit,. &c.” This plea then assigns the perjury in the very point, in which the declaration states the defendant meant to charge it by the words spoken by him. Indeed,- as a justification, the plea could not have been otherwise pleaded, for it would have been no answer to the declaration, since one false charge cannot be justified by proving, the plaintiff to have been guilty of another crime. It is, therefore, admitted at the bar, that the defendant could not, under his plea of justification, have offered evidence, that in another part of this oath the plaintiff committed a perjury, not assigned in the plea; and therefore the jury could know nothing of such supposed perjury. But it was said, that' under the general issue, all the words spoken by the defendant must go to the jury, and if they should believe that any of them were true, it would rebut the inference of malice in the speaking of the words, and the jury might find for the defendant. R would he most singular, if that were so. In the first place, it does not appear in this case, that the de-pen<jant evcr charged, in the conversations stated by the witness, that the plaintiff had committed perjury in saying that the delivery was in 1836, or that he could net prove it but by his own oath, ox in any other respect than in swearing, that he had sold him the two sacks of salt, when he did not sell him any. What right, then, could the defendant have to insist, that the plaintiff was guilty of a crime,, which the defendant had not imputed to him, and thereupon claim to be acquitted of speaking words, which he admits he did speak, and which he also admits were false1?

But- if the defendant had charged the plaintiff with a perjury in- each of the three particulars, süll His Honok’s opinion would be perfectly correct, in reference to the question on which it- was given. The question was this; whether the plaintiff’s action would or would not be barred by proof, that the defendant had charged the three perjuries on the plaintiff, and that, as to two of them the charge was true, though the defendant had been unable to prove the particular one, which the plaintiff had declared on? The counsel for the defendant insisted in this Court, that in such a case the defendant was entitled to a verdict; and His IIoNon held the contrary; properly we think.

We admit, that a defendant, in an action for slander or libel, has a right to require, that all he said or wrote should go to the jury, that they may judge of motives, and under all the circumstances assess the proper amount of damages. If the defendant has made divers charges against the plaintiff in the same conversation or publication, and the plaintiff sues for one of them, the other party may call for the context. He does it, necessarily, at a risk, for the jury may think he does it to blacken the plaintiff’s character then without responsibility, and therefore may increase the damages. On the other hand, it is certainly a fair topic of argument to the jury upon the question of damages, that the plaintiff, by picking and culling among the charges, has been able to get one which the defendant is unable to sustain, and that he re-lios on that alone, and by the admission of the others has not afforded the defendant the opportunity of justifying them on the record and proving them, although, perhaps, such omitted charges may be the most serious of those made, or as grave as that declared on. Such animadversions might be very just in reference to the damages, since one, who sues for his character, ought so to bring his action, as fairly to put it in issue and give the person, who has spoken against it, a full opportunity of justifying all or any part of what he said. And, no doubt, if this defendant had charged on the plaintiff any perjury but that set forth in the declaration, the most would have been made of it on the trial before the jury; and His Honor would, of course, have left that conversation to the jury, as exclusively within their province. But that was not the case on the trial of the present cause. On the contrary, the defendant insisted, that the plaintiff was not entitled to recover at all, although the jurv should find the speaking of the words laid in the declaration, and that they were not true; a proposition, which can never be admitted, while the pleadings of the parties are to have any effect hi fixing the points, on which the cause is to be decided, or in regulating the evidence to be given on the trial. We think, therefore, that there was no error committed on the trial, and that there cannot be a venire de novo.

There has also been made in this Court a motion in arrest of judgment, for the insufficiency of the declaration. After stating the plaintiff’s good character, and that before the committing of the grievous, &c. a certain plaint had been depending, brought by warrant before a justice of the peace, in, <fcc., wherein the said David was the plaintiff and the said Samuel was the defendant, and which plaint so brought by warrant had been lately tried before, &c. andón said trial the said Samuel had claimed as a set off against the demand, &c., the price of certain articles stated in an account in writing, then produced by the said Samuel, and amongst them two sacks of salt as sold and delivered by the said Samuel to the said David; the declaration then proceeds as follows: “And whereas,.the said Samuel, on the said trial before the said justice of the peace, mas sworn and did take his corporal oath before the said justice, and was on his said oath then examined on the said trial before the said justice, to prove among other things, the sale and delivery of the said two sacks of salt by the said Samuel to the said David, according to the provisions of the statute in such case made and provided, entitled “ An Act ascertaining the mode of proving debts, &e.” The declaration then proceeds to state, that the defendant, well knowing the premises, and intending, «fee., in a certain discourse, &c., “ falsely and maliciously spoke and published of and concerning the said plaint by warrant, and of and concerning the examination of the said Samuel on his said oath on the said trial, to prove the sale and delivery of the said two sacks as aforesaid, then falsely, &c.” The objection is, that the declaration does not in express terms aver, that on the trial the plaintiff, after being sworn, “ was examined and gave his evidence as a witness, that &c.” Upon looking into the precedents, we perceive that, where there was a trial before a jury it is usual to state, that on the trial the plaintiff was sworn and was examined on oath, and gave his evidence as a witness. 2 Chitty, PI. 621, 637. But the declarations do not set forth what the evidence of the plaintiff was on the trial, or to what particular matter he was examined, but only in general terms that he was examined and gave his evidence. We think to that extent, this declaration must be understood to have the same meaning. To an ordinary reader it would convey the meaning, that the plaintiff had proved upon the trial the sale and delivery of the salt; though it is not express to that purpose, nor, perhaps, can it necessarily be inferred, as the words are, that the plaintiff was examined on the trial to prove such sale and delivery. But, as was just observed, the precedents do not state, what the plaintiff did prove or say on his examination, but only that he gave his evidence on the trial, Now, we think that no one can read this declaration, without understanding that, at the least, the plaintiff gave evidence on the trial of the warrant, and that, if he did not prove the sale and delivery of the salt, yet he was examined as a witness, and gave bis evidence touching the same. At all events, it must have been proved, that the plaintiff did give evidence on the trial of the warrant, else the jury could' not have given the verdict they did, and we see upon the case that, in fact, it was so proved; and therefore, after verdict, the fault, if it be one, is helped, and the judgment is not to be stayed for the omission of a more precise averment. Rev. St. c. 3, s. 5.

Per Curiam, ' Judgment affirmed.