Cass v. Anderson

Aldis, J. An important question arises in this case as to the meaning of the bill of exceptions. The bill states that the plaintiff proved that the plaintiff testified as a witness on the trial before the arbitrators, but gave no evidence that he was sworn as a witness except as the same is to be inferred from his having so testified. The defendant requested the court to charge the jury that the plaintiff could not recover without proving that he was duly sworn as a witness upon the trial. But the court charged that no further proof of his having been sworn was necessary. To this the defendant excepted. The defendant construes this to mean that the court charged the jury that the plaintiff could recover without proving that he was sworn as a witness ; that if he testified, though not sworn, it was sufficient. The plaintiff claims that the meaning is, that the fact that he testified tends to prove that he was sworn, and that as the jury might find that fact from the evidence so tending to prove it, and as there was no evidence to the contrary, they were bound to find that fact as proved which the uncontradicted evidence tended to prove, and therefore no more direct proof of his having been sworn in due and legal form was necessary. A s persons who testify as witnesses are usually sworn, proof that a person testified as a witness tends to show that he was sworn. If there, is no evidence tending to show that the witness was not sworn, we think the jury would be bound to conclude from the fact that he testified, that he was sworn. Such is the natural and legal inference, and jurors are not at liberty to disregard the necessary result of undisputed facts. When the bill of exceptions says that the plaintiff gave no evidence that he was sworn except what may be inferred from the fact that he testified, it virtually says that that fact did tend to prove that he was sworn. Now it is to be observed that the bill is silent as to the defendant’s offering any testimony to the contrary. The question does not arise upon any exclusion of [186] testimony so offered by the defendant. Nor does it appear that there was anything in the case tending to show he was not sworn. But the question arises upon a request to charge upon the case bare of all evidence on this point except that offered by the plaintiff. What is the fair meaning of the request ? The words are, “the defendant requested the court to charge the jury that the plaintiff could not recover without proving that he was duly sworn as a witness.” Unexplained by the context, these words might only mean that the plaintiff, to recover, must prove that he was sworn. And then, upon the defendant’s construction, the natural reply of the court would have been, “ No, it was not necessary for him to have been sworn ; it is enough that he testified.” But when the context states that the fact that the plaintiff testified, tended to show that he was sworn, and that the court charged that no further proof was necessary to show he was duly sworn, we think the court must have understood the request to mean that the fact that he testified only tended by inference to prove that he was sworn, and there ought to be direct proof that he was duly sworn. So understanding the request, the reply of the court, that no further proof was necessary, was a direct denial of it, and the expression no further proof implies that the defendant claimed further proof as necessary, but that such proof as was in was sufficient, and no more direct proof was necessary. This view of the bill of exceptions renders it unnecessary to consider the question, whether words imputing perjury to a party in his testimony upon a trial, in which he might have been sworn, will sustain' the action, when it appears by the proof that the party testified without being sworn. As the essence of slander consists in making it to be believed that the party has perjured himself, and as the slanderous words do not carry with them their antidote, so that those who hear them may know that he did not commit perjury, but only testified falsely when not under oath, we should be strongly inclined to sustain the action, even upon the view presented by the defendant. But not having the means of fully examining the authorities upon this question, and as they do not seem to be entirely in harmony, we do not decide the point. [187] II. The defendant moves to have the judgment arrested because the declaration does not allege that there was a court or judicial proceeding before whom the false testimony was given. The colloquium of the declaration alleges the slander to have been uttered of the plaintiff’s testimony given as a witness at Glover before certain arbitrators who are named, and wh ohad held an arbitration between the plaintiff and one F. R. Flood. The slanderous words set forth contain the following expressions : “ Cass acknowledged that he swore to a lie about the money, and had taken seventy-five dollars out of Flood more than he ought to. He acknowledged that he swore to a lie about the borrowed money, and that he never let him (Flood) have any money at all. Cass acknowledged to me that he swore false in the trial with Flood, and that he had swore falsely in reference to the money, and that he never let Flood have any money as he swore he did, and that, he must go to State’s prison.” How, conceding (which is at least doubtful,) that these words are not in themselves actionable, and require a colloquium to show that they were used in reference to a judicial proceeding, it is plain that a colloquium which sufficiently describes an arbitration between Flood and the plaintiff, as the one referred to, would be enough. This the declaration attempts to do, and although the averments are both argumentative and by way of recital, and so are defective in form, yet after verdict such defects cannot be taken advantage of. The court are required to supply by intendment all such averments as may be fairly and reasonably presumed to have been proved, and which the general, though defective, allegations of the declaration embrace. There can be no question but that the proof of an arbitration between the plaintiff and Flood must, under the declaration, have been fully made out. The colloquium contains terms sufficient to include such necessary averment by reasonable intendment. 2. It is also urged that there is no averment that the plaintiff was legally sworn. The declaration avers that the words wore uttered “ concerning the plaintiff and concerning the plaintiff’s testimony given as a witness before the arbitrators,” etc. This is not a direct averment that the plaintiff was sworn ; it is clearly quite defective in form, at most but an argumentative averment ; [188] but after verdict we must hold it sufficient. We must understand that his testimony was given in the usual manner and under the solemnities of an oath, The case of Sanderson v. Hubbard, 14 Vt. 462, has been cited to show that the omission of the averment that the plaintiff was legally sworn, was fatal on motion in arrest. But the case by no means sustains that doctrine, nor does it go so far as to say that the words used in that declaration, “ was examined on oath and gave evidence,” are fatally defective on demurrer, but only that the defect, if any, was caused by the plea, and to use the words of Royce, J., that that allegation should be understood to mean that he was examined in a legal manner and under the usual responsibilities of a witness, and having been first duly sworn by a magistrate. The authorities, however, seem to go further than is required to sustain this judgment. It is stated in 1 Amer. Lead. Cases, 3d ed. 122, citing a large number of authorities, that there is no question that the want of an averment that the plaintiffs were legally sworn cannot be objected to alter verdict. Here, however, the averment is not wholly omitted, but only defectively stated. It does not seem to be a forced intendment to say that testimony given by a witness was given upon oath, that the witness was sworn. This objection, therefore, we overrule. 3. It is also objected that the declaration does not aver that the defendant charged the plaintiff with having committed perjury. But the words explained by the colloquium are clearly actionable, and in such case it is sufficient if the innuendo show that they were uttered in an injurious sense, The colloquium alleges that the words were spoken to expose him to the penalties of perjury, and the innuendo expressly states that the plaintiff thereby acknowledged that he had committed perjury, etc. In this connection, too, we may observe that the plea in substance admits that the defendant charged the plaintiff with perjury) which admission precludes him from this objection. 4. It is urged that the words spoken are not a direct averment that the plaintiff swore false, but only that he acknowledged that he swore false, and that this cannot be slander. The form in which a slander is expressed is quite immaterial. [189] The words may be ironical, or in the form of a question, or narrative of what some one has said, and yet be actionable as much as if expressed in the most positive and direct form of averment. The substantial inquiry is, did the party mean to have the slanderous idea believed by those who heard him ? Would the words as used be generally understood in their ordinary and natural import to convey the injurious meaning ? In this case the colloquium and innuendoes, connected with the wordé alleged to have been spoken, leave no room for question that an ample cause of action is declared upon, and upon this ground no demurrer could prevail. We have, in this decision, treated the words as if not actionable in themselves, but we strongly incline to the opinion that the words construed altogether, and especially in connection with the expression that he confessed that he must go to State’s prison, afe actionable. The words set forth seem to carry the direct charge of perjury much more strongly than many which may be found in the books, which have been held actionable. See 1 Am. Lead. Cases, 119, and oases there cited, especially Oilman. v. Sewell, 8 Wend. 573. Judgment affirmed.