Self v. Gardner

| Mo. | Jan 15, 1852

Gamble, J.,

delivered the opinion of the court.

Gardner brought an action on the case against Self for slanderous words spoken by Self. The defendant pleaded the statutory plea under the act of 1847. The declaration charged the utterance by the defendant of many phrases, imputing to the plaintiff a disposition to steal; but there was only one direct charge of theft made by defendant, and that was that the plaintiff had “stolen a dollar from Lea & Price.” On the trial the evidence on the part of the plaintiff was confined to the proof of the words spoken by the defendant, charging him with having stolen a dollar from Lea & Price. The defendant offered to read a deposition of one Wm. S. Lea to prove that plaintiff stole a dollar from James A. Bates, but the court on the motion of the plaintiff excluded the deposition. A verdict was rendered for the plaintiff for $250; and the defendant moved for a new trial and in arrest of judgment. Some papers are copied upon the transcript that are in shape of instructions to the jury, but they are not in any bill of exceptions. The motions for a new trail and in arrest of judgment were overruled.

The deposition of Lea was properly excluded. The only charge of actual theft of a dollar, was the charge of stealing a dollar from Lea & Price, For making this eharge the defendant was sued, and the evidence that plaintiff had stolen a, dollar from Bates was not pertinent to the matter in issue, nor could the plaintiff be called on to meet such new charge.

As far as the case is shown by the bill of exceptions the motion for a new trial was properly overruled, and as the declaration contains words clearly actionable the motion in arrest of judgment was rightly overruled.

The judgment is affirmed.