Howell v. Howell, 32 N.C. 82, 10 Ired. 82 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 82, 10 Ired. 82

DOCTOR C. HOWELL vs. EVAN S. HOWELL.

In an action of slander against the defendant, for charging the plaintiff with perjury, in swearing on a certain trial, that “he knew the character of B., and would, from his general character, believe him on oath,” it is compe* tent for the plaintiff, in answer to a plea of justification, to prove by witnesses that they also wonld believe B. oil oath from his general character.

The case of the Stale v. Boswell, 2 Dev. 209, cited and approved.

Appeal from the Superior Court of Law of Henderson County, at the Spring Term 1849, his Honor Judge Bailey presiding.

This was an action of slander. The defendant charged the plaintiff with committing perjury-in this: that, upon a certain trial, he swore “that, from the general character of one Brady, he would believe him on oath, and that he was well acquainted with his general character.” To sustain the plea of justification, the defendant proved, that, a short time before the trial referred to, the plaintiff said, that Brady’s character was so bad, that nobody would believe him; and the defendant called several witnesses, who swore, “that Brady’s character was desperately bad, and they would not believe him on oath.” The plaintiff'called one McWhite, who swore, that he was well acquainted with the general character of Brady ; that it was tolerably bad. The plaintiff’ then asked the witness, if. from the general character of Brady, he would believe him on oath ? This question was objected to by the defendant, and the Court refused to allow the witness to answer.

To this the plaintiff excepted, and, a verdict having been rendered for the defendant, the plaintiff appealed from the judgment thereon-

Henry and J. W. Woodfin, tor the plaintiff

N. W. Woodfin and Baxter, for the defendant.

Pearson, J.-

We think there was error in rejecting.the testimony offered. That the question is proper in the abstract, is settled by the case of The State v. Boswell, 2 Dev. 209. In fact the perjury charged and which the defendant attempted to prove in justification, was an answer to this very question. After the jury had heard' from witnesses, called by the defendant, that, from Brady’s general character, as they believed it to be, they would not believe him on oath, it was clearly right, that th& plaintiff should be allowed to prove, by other witnesses, that from Brady’s general character, as they believed i.fc to be, they would believe him on oath.. This was the very point, upon which the plea of justification turned.

The defendant says, that his being allowed to ask im* proper questions, without objection, was no reason why the plaintiff should be allowed to do so, when objection was made. That is true ; but it assumes that the question was improper, whereas, we think, the question was proper and pertinent, and bore upon the very gist of the issue. For, if the plaintiff was able to call one or more witnesses, who would swear, that they were acquainted with the character of Brady, and that, from that general character, they would believe him on oath, it is hard to conceive, how a jury could say, that the plaintiff had sworn knowingly and corruptly false, unless they believed the witnesses, called by him, also swore falsely.

Per Curiam.

Judgment reversed and venire- de novo„