Hereford v. Combs

TYSON, J. We cannot review the assignments of error based upon the action of the court in overruling [378] the demurrers to the complaint, for the reason that the record contains no judgment by the court to that effect.—Cartlidge v. Slone, 124 Ala. 596; McDonald v. Railway Co., 123 Ala. 227, and authorities there cited. Section 1439 provides that “every accusation of false swearing presumptively imports a charge of perjury.” This statute would seem to be a sufficient answer to the objections urged against the allegations of the various counts of the complaint. The defendant filed three pleas to the complaint and each count thereof. The first plea is the general issue; the second, that the statements alleged to have been made by the defendant defamatory of the plaintiff are true; and the third, that the statements made by defendant to the effect that the plaintiff had sworn to a lie, were made in open court by him, in denial of a statement made by the plaintiff while testifying as a witness in a certain cause. A great many exceptions were reserved by the defendant during .the trial, and there are a large number of assignments of error. An examination of the evidence discloses that the defendant while testifying as a witness in behalf of himself in this case admitted that he had stated to various persons that plaintiff had sworn to a lie while being examined as a witness on the trial of his (plaintiff’s) 'son-in-law, Ed Stone, charged with the larceny of some hogs belonging to the defendant, in the circuit court on the 3d day of June, 1898. These facts had been proven by the plaintiff, by a number of witnesses examined in this dause. In short, they were undisputed facts, proven in the case. The truth of the words spoken or the circumstances under which they were spoken, if established by the evidence, merely go in mitigation of the damages.—Code, § 1438. Notwithstanding the truth of the words spoken may be given in evidence under the general issue by the defendant, the burden of proof is upon him to reasonably satisfy the jury of their truth.—Code, §§ 1437, 1438. [379] In Spruil v. Cooper, 16 Ala. 791, it was said: “In an action of slander charging the plaintiff with perjury, if the defendant plead the truth of the charge in bar of the action, he must introduce such proof in supj)ort of his plea as would be required to convict the plaintiff on an indictment for that offense.—Wooddeck v. Keller, 6 Cow. 118; 16 Wend. 601; 7 Black. 83. The extent of this rule, however, is that the defendant must sustain his plea by two witnesses, at least, or by one witness and corroborating circumstances. When this is done, the jury are then to weigh the evidence in support of the plea, as they would in any other civil suit.” It is true this opinion was delivered prior to the enactment of the act which now constitutes section 1438 of the present Code. But this provision of the Code does not ■change the principle. The failure of the defendant to prove the truth of his plea of justification to the reasonable satisfaction of the jury was an aggravation of the damages.—Robinson v. Drummond, 24 Ala. 174; Pool v. Dovers, 30 Ala. 672; Lear v. Robertson, 1 Stewart, 138. The court, being requested, reduced his general charge to the jury to writing. It appears to be copied in full in the record. We have examined it, and, considering it as a whole, as the jury were bound to consider 'it, it presented the law of the case correctly to the jury. As to that portion of the charge which instructed the jury “if from all the evidence you are reasonably satisfied that the statement made by defendant against the plaintiff is true, you should find for the defendant, and in that event, the form of your verdict would be, ‘we, the jury, find for the defendant’,” it cannot be said to be erroneous as the second plea is 4 plea in bar to the entire complaint, and does not limit the matters of defense to merely mitigating the amount of damages recoverable. As a plea in bar it presents an immaterial issue, but issue having been taken on it the defendant is entitled to have the issue raised under it passed upon by the jury. However, under the principles we have announced, the written charges given at the request of the plaintiff involve no error of prejudice to the defendant. [380] We shall now take up the assignments of error predicated upon exceptions reserved to the admission and exclusion of evidence. There was no error in allowing the witness, Dr. Mc-Kelvey, in Response to the question by plainttff, “what was Hereford’s manner when he said Combs swore to a lie?” to answer that “Hereford was gesticulating and very rough,” against the objection that it was illegal, immaterial and incompetent. This Avas a part of the res gestae. When the defendant filed his plea alleging the truth of the accusation he had made against the plaintiff to the effect that he (plaintiff) had sworn to a lie, he put in issue the plaintiff’s character for truth and veracity, and it was perfectly competent for the plaintiff to introduce evidence to sustain his character in that respect.—Rhodes v. James, 7 Ala. 574; 13 Am. & Eng. Encyc. Law, p. 396, and authorities cited in note 5. It was improper to permit the plaintiff to prove that it Avas generaly circulated in the community in which he lived, that the defendant had charged him Avitli SAvearing to a lie, or that the report was generally circulated in that community, in the absence of proof that the defendant himself or some one else at his instance caused the charge to be circulated. The defendant can only be be held liable for the damages occasioned by his oavh communication.—13 Am. & Eng. Encyc. LaAV, p. 375, and notes 3 and 4 on p. 490. They who repeat his defamatory words are 'liable for the wrong committed by them, but the originator of the slander is only liable for such damages as result directly from his own utterances.—lb., p. 442. The defendant should have been permitted to testify, if he knew the fact, that Popejoy came to him, at the request of the plaintiff, to ascertain if he would compromise the prosecution instituted by him against the plaintiff’s son-in-law, for the larceny of his hogs. It Avas immaterial to any issue in the case that F. G. Hereford, a witness examined in behalf of the defendant, Avas a surety upon the appearance bond of Stone. It did not tend to show that he entertained any bias in [381] favor of the defendant, or prejudice against the plaintiff. So too was the.question asked the plaintiff “Did you or not swear on the Stone trial that you had talked to Frank Hereford before the preliminary?” We are of the opinion that it was not error to allow the plaintiff on cross-examination of the defendant, as a witness, to show that lie (defendant) was the prosecutor of Stone, and that he knew, at that time, lie was the son-in-law of the plaintiff, and also to show by him that he had done a great deal of talking about the plaintiff’s having sworn falsely in the Stone case. These facts tended in some degree to show the animus of the defendant towards the plaintiff, and were otherwise proper matters to be considered by the jury. We have given consideration to all the assignments of error insisted upon in argument. For the errors pointed out the judgment is reversed and the cause remanded. Reversed and remanded.