Swails v. Butcher

May 15, 1850
Reporters:

THIS was an action of slander brought by the appellee against the appellant. The words alleged to have been spoken charged ‍‌‌‌​‌‌​​‌‌​‌​‌‌​​​​‌‌‌​‌‌​‌‌​‌​​​‌​‌​‌​‌‌​‌​‌​‌​​‌​‌​‌​​‌​​​‌​‌​​‌‌‌​​​​‌‌​​‌‌‌​​​‌​​‌​‌‌​​​‌​‌​‍the former with having committed perjury. The appellant pleaded not guilty; and, in justification, that the words spoken were true.

The evidence is not set out in the record, but it appears, by a bill of exceptions, that the Court, at the instance ‍‌‌‌​‌‌​​‌‌​‌​‌‌​​​​‌‌‌​‌‌​‌‌​‌​​​‌​‌​‌​‌‌​‌​‌​‌​​‌​‌​‌​​‌​​​‌​‌​​‌‌‌​​​​‌‌​​‌‌‌​​​‌​​‌​‌‌​​​‌​‌​‍of the plaintiff below, charged the jury, inter alia, that to convict a defendant upon a charge of pel jury upon an indictment, the positive testimony of two witnesses, or of *85one witness and corroborating circumstances to every ma(terial point of the false swearing, is ‍‌‌‌​‌‌​​‌‌​‌​‌‌​​​​‌‌‌​‌‌​‌‌​‌​​​‌​‌​‌​‌‌​‌​‌​‌​​‌​‌​‌​​‌​​​‌​‌​​‌‌‌​​​​‌‌​​‌‌‌​​​‌​​‌​‌‌​​​‌​‌​‍necessary; and I the defendant, in order to prove the truth of his pleas of ¡justification, must give evidence of the same strength as ■ would be necessary to convict the plaintiff of perjury in ! a criminal prosecution.

J. Ryman, for the appellant. J. ‍‌‌‌​‌‌​​‌‌​‌​‌‌​​​​‌‌‌​‌‌​‌‌​‌​​​‌​‌​‌​‌‌​‌​‌​‌​​‌​‌​‌​​‌​​​‌​‌​​‌‌‌​​​​‌‌​​‌‌‌​​​‌​​‌​‌‌​​​‌​‌​‍S. Scobey and A. Davison, for the appellees

This was correct; but the Court gave the further instruction, that if the pleas of justification were not sustained by proof of the kind above-mentioned, they might be considered by the jury in aggravation of the damages.

This last ‍‌‌‌​‌‌​​‌‌​‌​‌‌​​​​‌‌‌​‌‌​‌‌​‌​​​‌​‌​‌​‌‌​‌​‌​‌​​‌​‌​‌​​‌​​​‌​‌​​‌‌‌​​​​‌‌​​‌‌‌​​​‌​​‌​‌‌​​​‌​‌​‍instruction was erroneous. Shank v. Case, November term, 1848. — Shoulty v. Miller, November term, 1849 (1).

The judgment is reversed with costs.

Notes

Sec 1 Carter’s Ind. R. 170, and id. 544.