5 Mo. 525 | Mo. | 1839
delivered the opinion of the courtv
Small brought an action in the circuit court against-' Stewart, and obtained a judgment, from which Stewart appealed, to this.court.
The appellant took exceptions to certain instructions given by the court, which are not incorporated in the bill of exceptions, but referred to as copied below by the-clerk. He also- moved to set aside the verdict, and for a new trial, for reasons not set out in the bill of exceptions., These reasons were contained in affidavits which the-clerk had copied and set out before the bill of exceptions,. where he ought not to have copied them, as they constitute no part of the record till incorporated in the bill of
The errors assigned and insisted on are: 1. That the court gave the seventh instruction. 2. That the court gave the ninth instruction, 3. That the court refused to set aside the verdict and grant a new trial, for reasons set out in affidavits filed. 4. Because the court refused to grant a new trial on account of the absence of a material witness who had been summoned and in attendance, but had absented himself before the trial.
Two other errors are assigned, being a mere repetition of what was before assigned, and therefore not urged. This was an action for words spoken, charging the plaintiff with perjury.
1. The seventh instruction, which is the subject matter of the first assignment of errors, is, that unless the jury believe by the testimony of two witnesses, or by the testimony of ope witness and circumstances equal to the testimony of another witness, that Small knew he had a claim to the improvement at the very time he swore he had no claim, they must find for the plaintiff. For the defendant below (appellant here) it was contended that, as in an indictment, the crime of perjury must be proved by two witnesses; so on a plea of justification in this action, the defendant could prove the facts adeged in justification by nothing less than two witnesses. Starkie (vol. 2, p. 879,) seems to declare this to the rule of law; the consequence, then, would be, that tke circuit court had expounded the law more favorably to the defendant than it ought to have done. This might have been a subject matter of complaint for the plaintiff to sFely not for the defendant,
2. The ninth instruction, which constitutes the second ground of complaint, is, that the court told the jury that they believed, from the testimony, that Small, while testifying before the justice, believed that Bullock had no elairn to the land at the time of the sale, they must find fo'r the plaintiff. The fact attempted to be set up and proved in the plea of justification is, that Small, in a trial before a justice of the peace, had sworn that he had no claim, by purchase or otherwise, to an improvement under Bullock, and that he had no claim whatever to said improvement; whereas, in truth.and in fact, he had purchased it from Bullock. So that the error charged to
The appellant himself might instigate bystanders to
4. The appellant in his affidavit declares, in terms sufficiently plain, the materiality of his witness; that he had been summoned and in attendance part of the term of the court, and that he absented himself without the consent, &c. of the appellant; but he shows no exertions made to procure the attendance of this witness. It is very common, when- witnesses have been as long in attendance as this one appears to have been,, for them to go off, with the intention to return in time, and thus to be absent at the rime of trial. The appellant must have been guilty of the most gross negligence not to have demanded an attachment for this witness; he might have been very easily produced, for any thing appearing to this court. No attachment was issued nor asked for. For any thing alleged under this head, the verdict, in my opinion, ought to stand.
For all the reasons above given, the judgment of the circuit court ought, in my opinion, to be affirmed; Judge Napton being of the same opinion,, it is accordingly affirmed..