M'Kinly v. Rob, 20 Johns. 351

M'Kinly v. Rob

20 Johns. 351 | N.Y. Sup. Ct. | 1823

Woodworth, J.

delivered the'opinion of the Court. The day stated in the declaration is not material. There was ne record of the complaint j and if there had been, the declaration does not profess to set it out according to its tenor, or hi June verba, but refers to it as matter of description, for the purpose of informing the defendant that the words referred to a complaint previously made. In Brooks v. Bemiss, (8 Johns. Rep. 455.) the defendant gave notice that he would offer in evidence a record of the trial of an indictment, of the term of June, 1810. When produced, It appeared to be 1809, and the Court held that the variance was not material

There is no foundation for the second point, for the plaintiff did prove the words to have been spoken in reference to the oath of the plaintiff on the complaint. The declaration avers,- that the words were spoken concerning the evidence given on the complaint, which I understand as the evidence given when application was made to the Justice, and upoB which the warrant issued; it says nothing respecting the subsequent examination. The case states, “ that the plaintiff proved the words as laid and if so, he must have proved, that the words spoken had reference to the complaint. Whether the plaintiff gave testimony on the examination of Slyter or not, is immaterial. The plaintiff does not charge the speaking of words relating to that, nor does it appear that any proof was given of the speaking of words by the defendant relating to the evidence given on the examination.

The charge to the jury was correct. The words spoken, in judgment of law, imputed the crime of perjury, inasmuch as they alleged the false swearing to have been before a Magistrate, having competent authority to administer the oath, and take cognizance of the complaint. There was no qualification or explanation by the defendant, at the time, that the *356plaintiff, through misapprehension or mistake, may have sworn false. It was too late, at the trial, to say, in substance, " the plaintiff has sworn false, but it may have proceeded from mistake, and may not have been corrupt. I did not intend by the words more than this.” The defence, to be available, must be as broad as the charge; the evidence relied on was no justification. When a defendant has made a charge, that clearly imputes a crime, he cannot, after-wards, be permitted to say, I did not intend what my words legally imply. The intent must be collected from the expressions used, when they have a certain and definite meaning. The jury cannot rightfully indulge in conjectures that are not warranted by the legal import of the words spoken. But if it is doubtful whether the words impute a crime, or may be satisfied by ascribing to them a meaning which renders them not actionable, then the intent may become a fair subject of inquiry before a jury. This distinction is recognised by Lord Ellenborough, in 3 Camp. Rep. 460., and by this Court, in 12 Johns. Rep. 257. The charge of the Judge would not have been correct, if the principle of these cases had been applied to the words spoken by the defendant. We are of opinion, that the plaintiff is entitled to judgment.

Judgment for the plaintiff.