Carpenter v. Ashley

McFARLAND, J.

Action of slander. The verdict and judgment were for defendant, and from the judgment plaintiff appeals.

It was averred in the complaint that on January 23, 1901, at the city of Stockton, in the presence and hearing of divers persons, defendant spoke and published concerning plaintiff the following words: “You have committed perjury.” “You

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have committed subornation of perjury.” “You are guilty of subornation of perjury.” “I charge you with subornation of perjury.” “I will have your case presented to the grand jury.” That on the next day, January 24, 1901, he spoke and published said words in "the presence of divers persons. That said words were false, etc. Defendant, in his answer, denies that he spoke the words, and upon that issue the evidence was conflicting, so that if the only question in the' case was whether the words were spoken as charged, the verdict and judgment could not be disturbed. There are, however, other questions in the case. The record presents numerous exceptions to rulings of the court in passing upon the admissibility of evidence and instructing the jury; but the only point made by appellant which calls for much consideration arises out of the instructions to the jury on the subject of “privileged publications.” Respondent set up as a defense that whatever words were spoken by him at the time stated in. the complaint were privileged publications, because made in the “proper discharge of official duty,” and in a “judicial proceeding,” within the meaning of the provisions of section 47 of the Civil Code. The jury may have found that the words were spoken as alleged, but were privileged; and therefore the instructions as to the privilege are important.

The facts and circumstances under which the words were spoken were undisputed; and therefore the question whether they were privileged was a question of law for the court to determine. The words were spoken by respondent, if at all, while, as district attorney, he was conducting in a justice’s court the trial of the criminal case of the people against Arthur Ennis, charged with petit larceny; and the plaintiff, Carpenter, who is an attorney at law, was conducting the defense of said Ennis. He was not a witness in the case. During the progress of that trial the defendant herein directed the sheriff to arrest one Stennett for an alleged crime, and plaintiff herein characterized the act of ordering the arrest as going beyond the legitimate means and “bulldozing”; and thereupon—if the averments of the complaint herein and the testimony of plaintiff are true—defendant herein used the words above quoted. Sometimes the question of privilege is one of mixed fact and law, and in such case it