Harbison v. Shook (41 Ill. 141, 1866)

Mr. Chief Justice Walker

delivered the opinion of the Court:

This was an action on the case for slander, brought by Dyke-man Shook, in the Henderson Circuit Court, against Jesse S. Harbison. The venue was afterward changed to Rock Island county, where a trial was had by the court and a jury, which resulted in a verdict in favor of plaintiff for $767.08; a motion for a new trial was entered and overruled by the court, and a judgment rendered on the verdict.

The declaration contains nine counts, in which it is averred, that plaintiff in error, falsely, wickedly and maliciously spoke of the plaintiff below, that, in a certain trial pending in the Henderson Circuit Court, he had sworn falsely. The language is differently stated in the various counts; the first five of which aver that plaintiff in error intended to charge defendant in error with having committed willful and corrupt perjury. The last four aver that he intended to charge him with swearing falsely. Plaintiff in error interposed the plea of the general issue, and a plea of justification, upon which the trial was had.

It is insisted, that all of the counts of the declaration, are framed under the common law, and that it was incumbent on defendant in error to prove the materiality of the evidence alleged to have been false. This may be true under the first five counts as they proceed for a common law slander, but as to the other counts, they seem to have been framed under our statute, and consequently are not governed by the common law rule, that to establish a slander it is necessary that the evidence charged to be false was material to the issue. The statute declares, that it shall be slander for one person to charge another with swearing falsely, or of having sworn falsely. And under the statute it is held to be unnecessary to aver or prove, that the evidence or oath charged to be false was material, or that the oath was in a judicial proceeding. Sanford v. Gaddis, 13 Ill. 329.

It is insisted, that there was a variance between the averments in the declaration that defendant in error testified in a case in which G-. S. Munduff was plaintiff, and James Harbison was defendant, and the evidence which shows that both James and William B. Harbison were defendants. If such a variance exists, it was waived by the stipulation of counsel,' which is embodied in the bill of exceptions, which admits the suit pending, as averred in the declaration.

It is likewise insisted, that the court erred in permitting defendant in error to introduce evidence of his good character, when there had been none given to impeach it. In slander, the rule is, that the plaintiff has no right to introduce evidence of character until it is attacked by the defendant. If the defendant simply files the general issue, and refrains from giving evidence of the previous bad character of the plaintiff, in mitigation of damages, under the current of the authorities, plaintiff could not go into evidence of his previous good character. But, when the defendant interposes a plea of justification, and introduces evidence in its support, that constitutes such an attack as will justify plaintiff in calling witnesses to sustain his character. In this case such a plea was filed, and an effort was made to prove it, and that fully warranted the introduction of such evidence by defendant in error. In admitting this evidence there was no error.

It is also insisted, that the court below erred in refusing to exclude the evidence of* all the witnesses, except that of Thompson, upon the ground of variance. The ground urged as a variance is, that they stated that plaintiff in error applied the language to “ Old man Shook,” and did not designate him by his Christian name. In a .portion of the counts, the averment is, that the language was spoken of and concerning “ Dykeman Shook,” and in others, “ Old Dykeman Shook.” It is a rule of evidence in this action, that the proof of equivalent words will not sustain the averment. But plaintiff is not required to prove all of the words set out in the declaration, although he must prove enough of them to establish the siibstance