Summary
In Chandler v. Robeson, 29 N.C. 480, it is distinctly decided that it is not sufficient to prove that what the plaintiff swore was false.
Summary of this case from Moore v. EdmistonOpinion
(August Term, 1847.)
Where a person charges another with perjury, and is sued in an action for the defamation, it is not sufficient for him to prove simply that what the plaintiff swore to was not true, but he must introduce evidence to convince the jury that the false oath was taken corruptly.
APPEAL from HAYWOOD Special Term in June, 1847; Bailey, J.
Action for a verbal slander; the pleas, the general issue and justification. The charge was that the defendant said he had been informed, or a grand juror had informed him, that a true bill had been found against the plaintiff for swearing to a lie in a suit before a justice of the peace, between the plaintiff and one Hinson, on which trial the plaintiff was sworn under the book-debt law, and that he would have his black jacket striped, or stript, at the next court. To sustain his plea of justification the defendant proved that, some two or three years since, one Hinson owed the plaintiff eight gallons of brandy, which he was to have at 31 1/4 cents per gallon, if he paid the cash. Hinson did not comply with his contract, but, soon after, paid $1.12 1/2, for which the plaintiff gave credit on his account. The plaintiff and Hinson then came to another agreement. The plaintiff agreed if Hinson would deliver to him 2 1/2 bushels of wheat, before sowing time, he would take it in discharge of the balance of his account, the whole to be valued at 75 cents per bushel, and the brandy at 37 1/2 cents per gallon. After this, Hinson delivered 1 bushel of wheat, which is credited in the plaintiff's account at 75 cents, making in the whole paid to the plaintiff $1.87 1/2; but Hinson failed to deliver the balance of the wheat in time according to the agreement. After this failure, the plaintiff warranted Hinson for $4, and at (481) the same time informed the officer that, after deducting the credit, there would be due on the account $1.12 1/2, or thereabouts. On the trial of the warrant the plaintiff exhibited his account, in which he charged Hinson with 8 gallons of brandy at 50 cents per gallon, and credited him with $1.87 1/2. He swore that, after giving all just credits, his account was just and true. The magistrate gave judgment for the plaintiff, and afterwards granted the defendant a new trial, and, on the second trial, the plaintiff admitted that he had made the two contracts, as hereinbefore stated, and again swore that his account was just. It was shown that, about the time of the second contract, the plaintiff had sold brandy for 50 cents per gallon.
The defendant's counsel moved the court to charge the jury that if they believed the witness, the plaintiff had taken a false oath; and further, that as the plaintiff had, on the second settlement, given credit for $1.87 1/2 and had agreed to take 2 1/2 bushels of wheat for the balance of his account, at 75 cents per bushel, rating his brandy at 37 1/2 cents per gallon, and as a bushel of wheat had been delivered in pursuance of his last agreement, the plaintiff was bound by it, as far as it was complied with, and could not look beyond it, and had no right to charge more than 37 1/2 cents per gallon for the brandy not yet paid for. This instruction the court refused to give, but charged the jury that although the plaintiff had entered into the contracts stated by the witnesses, and had agreed to take the wheat and charge the brandy at the stipulated prices, yet if Hinson failed to comply with his part of the contract the plaintiff had a right to be remitted to his original account, and to charge for the brandy whatever it was worth. His Honor further instructed the jury (482) that in order to sustain the defendant's plea of justification they must be satisfied that the plaintiff not only swore falsely, but that the oath taken by him before the magistrate was willfully and corruptly false. If so, they would find a verdict for the defendant.
There was a verdict for the plaintiff, and a judgment accordingly, from which the defendant appealed.
Francis and J. W. Woodfin for plaintiff.
Edney for defendant.
We agree with his Honor in refusing the instructions prayed for, and are not able to perceive any error in the charge. The first branch of the instruction required was palpably wrong. The court was required to instruct the jury that the testimony of the witnesses, if believed, showed that the plaintiff had taken a false oath. That was not the charge made by the defendant against the plaintiff; but it was one of perjury. It was not sufficient, therefore, to the defendant's justification that he should show that the oath was false; but he must go further and show that it was corruptly false. If this were not so, the condition of a witness would be truly perilous; the ignorant and the innocent would occupy the same ground with the corrupt. The most intelligent and upright are liable to be mistaken. It is not the falseness of the oath, alone, that constitutes the crime of perjury; but it is the corruptness of the heart in taking it. The court, therefore, could not give the instruction as required, and the charge upon that part of the case is entirely correct. Neither was there any error in refusing the instruction asked for as the price of brandy sworn to. Two special contracts were entered into between the plaintiff and Hinson relative to the brandy. By the first, Hinson was to have the brandy at 31 1/4 cents per gallon for cash. With this contract Hinson did not comply; and, after making a partial payment, it was mutually abandoned and a new one made, wherein both the price of the brandy and the mode of payment were (483) changed. With this latter contract Hinson did not comply, and might by the plaintiff be considered as having abandoned it. And in an action for the brandy Hinson would not be allowed to set up in his defense a special contract which he himself had broken. 2 Smith Lead. Cases, 27. The plaintiff, then, was no further bound by it than as it had been partially performed. Having been disappointed by Hinson in getting his seed wheat at the time he needed it, he was justified in considering the contract so far at an end as to authorize him to charge for his brandy what it was worth. Such was the charge the jury received. But if, in strict law, the plaintiff was still bound by the contract, yet he might well believe he was remitted to his original account upon the failure of Hinson to comply with it; and if he did so believe, though the oath taken by him might have been false, it would not have been corruptly so, and would not support the defendant's plea; and the question of corruption was left to the jury.
PER CURIAM. No error.
(484)