Long v. Eakle

Eccleston, J.,. delivered the opinion of this court. The evidence having been given as stated in the bill of exceptions, the plaintiff asked the court to instruct the jury, that if they believed the defendant used the language “so proven” by the witness, William Heritage, the words laid in the declaration were sufficiently supported, and their verdict must be for the plaintiff. And also, that if the jury believed the defendant said of the plaintiff, that he, Ben Long, had stolen Ben Lancaster’s old sow, and went there and took her away in the night, then such words were actionable per se, and their verdict, under the pleadings, must be for the plaintiff. These instructions were given by the court, with the quali- . fication that if, from the circumstances, the jury believed the language used had been spoken in jest and without malice, ⁴⁵⁷ then they might find a verdict for the defendant.

This qualification was excepted to on the part of the plaintiff, and is the ground of the present appeal. At the instance of neither party can the court grant an instruction upon any proposition, to sustain which there is no proof in the cause. And should it be done where there is any reasonable ground for supposing the instruction has produced any influence upon the minds of the jurors, in making their verdict, the decision will be reversed oil appeal. So likewise any qualification to a prayer which the court may think proper to add, involving a proposition not supported by any evidence, when by exception it is brought before the appellate court, it must appear that such qualification was harmless, and there existed no reasonable ground for believing it had produced any effect upon the verdict.

Such, the appellee insists, is the real character of the instruction given in this case. He says there was no evidence that the words were spoken in jest, and being bound to presume the jury understood their duty, we cannot suppose their verdict in favor of the defendant was given, because he spoke jestingly and not maliciously, when the inference may be made, with much greater propriety, that they disbelieved the plaintiff’s witness, and acted upon the hypothesis that the defendant never said the plaintiff stole the hog. It is perfectly manifest that the jury, in forming their verdict, came to the conclusion, either that the defendant was jesting, or that he did not use the