Coghill v. Chandler

Bay, Judge, delivered the opinion of the court. This was an action for slander. The petition contains three counts, and the words alleged to have been spoken, except in the second count, which seems to have been abandoned upon the trial, impute to the plaintiff the crime of larceny. [116] In liis answer the defendant denies having spoken the words contained in the petition, and this is the only issue made by the pleadings. Among the instructions asked by the defendant is the following : “That the words charged in plaintiff’s petition to have been spoken by the defendant is not supported by the evidence, and the jury will find for the defendant.” The court refused this instruction, and such refusal is the chief reliance of the defendant for a reversal of the judgment. We are of opinion that the court properly refused this instruction. The rule in such cases is that the words proved must substantially correspond with those alleged in the declaration. It is not necessary to prove all the words said, unless they constitute one entire charge; thus, as stated by Phillipps, in his Treatise on Evidence, vol. 3d, 551, it is not necessary to prove the whole of a continuous sentence alleged on the record, provided the meaning of the words proved is not varied by the omission of the others. If a petition should allege that the defendant spoke of and concerning the plaintiff the words — he is a bold thief, and the words proved were — he is a thief, this would not constitute a material variance, for the word thief is the material word in the charge. In Berry v. Dryden, 7 Mo. 324, Judge Scott declared the rule to be, that if the words charged to have been spoken are proved, but with the omission or addition of others not varying or affecting their sense, the variance will not be regarded. In the case under consideration, the words in the first count of the petition are: I believe John Coghill shot my dog, and he shot him for the purpose of stealing, and he is the fellow that stole my molasses. The proof does not show that the defendant uttered all the words alleged, but it is shown that in speaking of the plaintiff, he said he is the fellow that stole my molasses. The absence of proof to show that he also uttered the other words [117] imputed to Mm does not, under the rule laid down, constitute a material variance — the words he is the fellow that stole my molasses, embracing within themselves, and independent of what preceded them, an allegation of larceny. Several instructions asked by defendant and refused were unobjectionable, but inasmuch as they were substantially given in others, their refusal furnishes no ground of error. Other instructions were properly refused for the reason that there was no evidence upon which to predicate them. Upon the whole, we see no such error in the proceedings below as will justify this court in reversing the judgment. With the concurrence of the other judges the judgment will be affirmed.