The action is for slander is indirectly imputing to the plaintiff the crime of perjury, by saying to him, when speaking in reference to the trial of an indictment against one Bryant Adams and to the examination of the plaintiff as a witness on the trial, "You swore to a lie, and I can prove it." Plea, not guilty.
In support of his declaration the plaintiff gave in evidence the record of an indictment against Adams for a battery on the present defendant, on which there was a trial and acquittal (30) on not guilty pleaded, and proved that he, the plaintiff, was sworn and examined as a witness for Adams. He also gave evidence that the day after the trial the present defendant, speaking in reference to it and to the examination of the plaintiff on it, said to the plaintiff, "You swore to a lie, and I can prove it."
The plaintiff there stopped his case, and thereupon the counsel for the defendant insisted that the plaintiff was bound further to show what evidence he gave on the trial of Adams, so that it might appear to have been to some material point; and for the want of such proof he moved the court to nonsuit the plaintiff. The court refused the motion.
Then, for the purpose of showing that he did not intend to charge the plaintiff with perjury, but with a mistake only, and to rebut the imputation of malice, the defendant gave evidence that on the trial of Adams he, the defendant, was a witness for the State and swore that Adams struck him, and that the plaintiff swore that Adams did not strike him.
The defendant, for the purpose of further rebutting the imputation of malice and mitigating the damages, offered to prove also that Adams did, in fact, strike him. To that evidence the counsel for the plaintiff objected; and the court refused to admit it.
The plaintiff then offered evidence that the defendant had subsequently repeated the charge against him. The counsel for the defendant opposed its reception, on the ground that, after having once closed his case, the plaintiff could not give evidence *Page 33 of malice in the defendant. But the presiding judge admitted it, in answer to that given on the other side, for the purpose of showing the absence of malice. There was a verdict for the plaintiff, and from the judgment the defendant appealed. There are several reasons why the defendant can take nothing on his first point.
In the first place, error will not lie for a refusal to nonsuit, because the court is not bound to do so in any case, but has the discretion to leave the matter to the decision of the jury; except in the few cases in which the duty is imposed by statute. The defendant should have asked an instruction to the jury, and then he might have brought his case here for a wrong direction given or a right one refused. In the second place, if the objection had been good at the time it was taken, it was immediately overruled by the defendant's own proof that the evidence of the plaintiff on the trial of Adams was material, and, indeed, that it went to the gist of the matter. The defendant himself thus shows that the error of which he complains, if an error at all, was merely abstract and harmless in this case, under the facts actually existing; and a verdict on the merits is to be set aside only for an error practically prejudicial.
But, lastly, the decision was not erroneous, but perfectly (32) correct in itself. The plaintiff was not bound to prove more than his declaration ought to contain. As the words did not directly import a charge of perjury, but only that the plaintiff was forsworn, it was necessary to allege, as inducement, that there was a judicial proceeding, in which the plaintiff gave evidence as a witness, and that the defendant referred to that in making the charge. But the particular evidence given by the plaintiff is never, we believe, set forth in the declaration, and therefore need not be proved. In practice, plaintiffs have never been called on for such proof. The precedents contain, after the inducements and colloquium, the words spoken, and the averment that the defendant thereby meant to charge that the plaintiff in giving his evidence committed perjury. Whitaker v. Carter, 26 N.C. 461; 2 Chit. Pl., 621. If, indeed, the defendant had, in speaking the words, gone on to specify the matters testified by the plaintiff, and the point in which he had sworn falsely, then it would have been incumbent on the plaintiff to have set forth the whole, truly, in the declaration; and if, upon the whole thus stated and proved, the matter to which the alleged *Page 34 false oath related appeared to be immaterial, the action could not be maintained, since no intention to charge a perjury can be inferred from words that, taken together, legally import that there was no perjury.
But this defendant charged in general terms that in the evidence which the plaintiff gave as a witness in the prosecution against Adams, he "swore to a lie," which, connected with the inducement, the colloquium, and the innuendo, imports the charge of perjury, and imposes it on the defendant to show what the plaintiff did swear, and that it was corruptly false. Hence, the defendant, in his plea of justification, must state the evidence given by the plaintiff, and then negative the parts (33) in which it is alleged the perjury consisted, just as in an indictment for that offense. 3 Chit. Pl., 1033, 1037. To this effect the language of Mr. Justice Ashurst in Coleman v.Godwin is very pointed, as quoted by Chancellor Walworth in Power v. Price, 16 Wen., 450: "The effect of the words upon the hearers is what is to be considered, and the determinations in the old books are a disgrace to the law. If one charges a witness with having sworn false in relation to a particular fact in a cause, which fact would not necessarily be immaterial and irrelevant, the natural effect of the words is to convey to those who hear them the impression that the witness has committed perjury; and if the defendant wishes to show that he did not intend to impute the crime of perjury to the plaintiff, but merely that he had perverted the truth in relation to an immaterial fact, the burden of showing that the fact testified to was not material to the issue, and that it was not intended to impute to the plaintiff false swearing in the suit in the ordinary sense of the term, rests upon the defendant." And that doctrine is fully sustained in Power v. Price, by the Chancellor and the majority of the Court. The plaintiff, therefore, gave all the evidence the law required of him, and it would have been erroneous to nonsuit him.
In actions of this kind evidence of the truth of the words cannot be received under the general issue. Smith v. Richardson, Willes, 20, andUnderwood v. Parks, Str., 1200, are the leading cases on this subject. They were decided upon consultation of all the judges, and have been considered ever since as settling the point. Roberts v. Camden, 9 East., 92. Evidence of bad character may reasonably be heard in mitigation of damages, because less is due to a blemished than an unblemished name, and one is supposed to be at all times prepared to establish his general character. But unless the defendant pleads the truth of his charge it would be a surprise on the other party to allow *Page 35 him to give evidence of it. And as to its repelling the implication of malice, which is incident to the publication (34) of a slander, it has no such effect. For, as was well observed by Mr. Justice Holroyd in Fairman v. Ives, 5 Barn. and Ald., 645, by showing the truth of the slanderous matter which is the subject of the action, you do not show that it was not maliciously spoken or published, but merely that the party is not entitled to damages, because he is guilty of the charge imputed to him. There is often as much malice, ill-will and design to hurt, towards another, in speaking truly as falsely to his disparagement.
The last evidence given by the plaintiff was properly admitted as evidence in reply to that of the defendant, as mentioned by his Honor.
But if it had not been of that character its reception could not constitute an error for which the judgment might be reversed. The evidence was in its nature competent, and the objection to it was solely the period at which it was offered. Now, that concerns only the orderly proceeding in trials, about which there is no positive rule of law, like those touching rights, but only a course of the courts established for convenience and dispatch of business. To that course the courts generally, and very properly, adhere with strictness. But from it they in their discretion sometimes may, and under circumstances which require it, will depart for the advancement of justice; and an appellate court cannot undertake to control or regulate the discretion. It is the more safely and beneficially exercised by those who preside at trials, and can best appreciate, both the inconvenience from and, in particular cases, the necessity for admitting an irregularity of proceeding. Kelly v. Goodbread, 4 N.C. 468.
PER CURIAM. Judgment affirmed.
Cited: S. v. George, post, 329; Carlton v. Byers, 71 N.C. 334; Sowersv. Sowers, 87 N.C. 306; Levenson v. Elson, 88 N.C. 184; Knott v.Burwell, 96 N.C. 278; Brown v. King, 107 N.C. 316; Gudger v. Penland,108 N.C. 600; Upchurch v. Robertson, 127 N.C. 128. *Page 36
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