
    Davis Hamm and Amanda M. Hamm v. David Wickline.
    Under the bastardy act (S. &. C. 176), justices of the peace, on the preliminary examination, are authorized to administer an oath only to the complainant; and where a justice, without authority, assumed jurisdiction to try such a case on its merits, and administered oaths and examined other witnesses thereon, words charging one of such other witnesses with having sworn falsely on such trial, are not actionable in themselves, although the speaker intended thereby to impute perjury, and the hearers understood the words in that sense.
    Error to the Court of Common Pleas, reserved iu the District Court of Gallia county.
    This was an action of slander, in which there was a verdict and judgment for the defendant in the court below. The words for the speaking of which the action was brought, were as follows : “ Do you go and get Amanda Hamm to swear another--lie.” “ She ” (meaning Amanda Hamm) “ did swear a lie,--, she did.”
    
      One Frances McKinney had ■ caused the arrest of Isaac Wickline before a justice of the peace on a charge of bastardy. On the preliminary hearing of the case, the justice of the peace assumed jurisdiction to try and determine the case on its merits. Mrs. Hamm was sworn and examined as a witness for the prosecutrix on the trial.
    The words spoken by the defendant had reference solely to the testimony given by Mrs. Hamm on this trial.
    On the trial in the Court of Common Pleas, the plaintiff requested the court to charge the jury substantially as follows :
    1. That if the justice of the peace decided that he had jurisdiction to try and determine the case on its merits, and subpenaed and required Mrs. Hamm to give testimony, and she did give material testimony on the trial, and the defendant, believing she had legally testified on the trial so as to be guilty of the crime of perjury if she had knowingly and willfully testified falsely, spoke the words in reference to her testimony so given, intending thereby to charge her with the crime of perjury, and those hearing the words •so understood it, then the words are actionable and the ver■dict must be for the plaintiff.
    2. That the words are actionable if the defendant knew that the justice had no authority to administer the oath, .and maliciously made the charge, knowing that those who heard it would .understand it as a charge of perjury.
    8. That the words are actionable if the defendant maliciously intended to charge perjury, and those hearing so understood the charge.
    4. That the words are actionable if the defendant in ■speaking them referred to her testimony given on the trial, without explanation, and knew that the hearers understood it as a charge of perjury.
    5. That the words are actionable if the defendant in speaking 'them supposed the oath was valid, and that if her testimony was false she would be guilty of perjury, and vthose hearing so understood it.
    
      6. That- the words impute to her the crime of perjury, and are actionable per se.
    
    All of which the court refused to give as requested, and exceptions were saved.
    The District Court reserved the case for hearing here.
    The plaintiffs in error ask a reversal of the judgment of the Court of Common Pleas. The errors assigned and relied on are, that the Court of Common Pleas erred in refusing to give the special charges requested.
    
      Simeon Nash, for plaintiffs in error.
    
      S. A. Nash and L. Perry, for defendant in error.
   Gilmore, J.

One of the special instructions requested by the plaintiff' and refused by the court below, was, in effect, this: That the words used impute the crime of perjury, and are therefore actionable in themselves.

According to the principles governing the action this proposition is true, if the slander was in law an injury to the plaintiff. But to constitute such injury it must appear that the crime imputed was indictable and punishable.

If, then, the words used do not amount to a charge of the legal offense of perjury, they do not impute a crime liable to indictment and .punishment, and the proposition is not true.

To show that the words used could not by any proper construction have imputed the crime of perjury in its legal sense, we refer to the common law, where it is defined to be “ a crime committed where a lawful oath is administered by any that hath authority, to any person, in any judicial proceeding, who sweareth willfully, absolutely, and falsely to a matter material to the issue.” 3 Inst. .164.

The ninth section of the crimes act (S. & 0. 405) declares •what shall constitute perjury in this state, and section 11 of the same act provides “ that in every indictment for perjury ... it shall be sufficient to set forth the substance of the offense charged upon the defendant, and before what court or authority the oath or affirmation was taken, averring such court or authority to have full power to administer the same ,” etc. In Silvers v. The State, 17 Ohio, 365, it is said that “ to constitute perjury the oath or affirmation must be material, or be required by, or have some-effect in law.” Thus, whether we look to the common-law or to the provisions of our statute, to constitute perjury the oath or affirmation must be taken before some court or authority having full power to administer the same, and the common law and our Supreme Court agree in saying that the testimony given must be matexial to the issue, or (in the language of the coux’t) be required by or have some effect in law.

It is admitted that the words spoken had sole reference-to testimony givexx before a justice of the peace in the bastax’dy case, in which the justice assuxned jurisdiction to try and determine the case oxx its merits, and while thus acting..in his assumed authority, administered the oath to Mrs. Hamm. I say assumed authority, for he was acting without a shadow of legal authority in swearing and examining witnesses on the merits of the bastardy case.

The justice had no judicial authority in the particular case, except that conferred by statute.

The statute gave him authority to swear and examine-one witness only, the complainant, and reduce the examination to writing, and upon the parties failing to agree as-to the support of the child, he was required either to recognize the defendant to the Court of Common l^leas or commit him to jail. He had no authority to do otherwise.

When he assumed to go further, and try whether the-defendant was guilty or not guilty of the charge, and administered an oath to Mrs. Hamm and other witnesses for that purpose, he was simply acting on his personal authority, without color of legal right, and his acts in this respect were a nullity.

Under these circumstances, there was, of course, no authority for administering the oath, and the testimony given could not possibly have been material or of any effect in law. Both of these are prerequisites to the crime of perjury. Mrs. Hamm could not, therefore, have been indicted or punished for perjury committed on that trial; hence there was no charge of perjury in a legal sense, and the words used are not actionable in themselves, because they charged no crime, and could not have occasioned an injury ;in law.

Next, if the words spoke are not actionable in them-selves, can they be made so by reason of the state of the mind of the speaker, or the kno ledge, intention, belief, •or motive with which they were spoken by the defendant, or by the understanding of those who heard them ?

This question is raised on the record by several special instructions, all to substantially the same effect, which the plaintiff on the trial below requested to be given to the jury, and which the court refused to give.

The words spoken in this case were evidently used in •their primary and direct sense. They could not have been misunderstood. They were not actionable in themselves, because of the reasons above stated, and not because they were, on their face, of dubious import.

Under such circumstances, if the words were not action■ablé in themselves, they could not be made so by reason of ■the fact that the speaker intended to charge perjury, and the hearers so understood him.

It is only where words upon their face are of dubious import, or are prima facie and abstractly innocent, and derive their offensive or actionable quality from some collat•eral or extrinsic circumstances, that judges and juries shall, by the aid of proper testimony for that purpose, understand the words used in that sense which the speaker designed or intended them to be understood.

Finding no errors on the record, the judgment of the Court of Common Pleas must be affirmed.

Judgment accordingly.

McIlvaine, C. J., White and Rex, JJ\, concurred;. Welch, J., not sitting.  