William J Henry.

Ecclesiastical law and rules of evidence, with special reference to the jurisprudence of the Methodist Episcopal church online

. (page 31 of 58)
Online LibraryWilliam J HenryEcclesiastical law and rules of evidence, with special reference to the jurisprudence of the Methodist Episcopal church → online text (page 31 of 58)
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credibiHtv of the witnesses by contradicting them. But it seems to us that if an
immaterial fact is stated by a witness of his own accord, or as introductory
merely to material testimony, or if the parly who calls a witness is permitted
without objection to question him as to material facts, the irrelevant testimony
must be regarded in the same manner as if it had come out on cross-examina-
tion, and the other party can not call witnesses to contradict it. Now here the
evidence as to the insanity of the nun was immaterial; it was not objected to by
the prisoner's counsel, the Court were not called to pass upon its admissibility,
and we think that evidence to contradict it is immaterial, and therefore can not
be received. Commomcealth v. BuzzeJl. IG Pick. 158.

The Court were all decidedly of opinion that it was not competent to counsel
on cross-examination to question the witness concerning a fact wholly irrelevant
to the matter in issue if answered affirmatively, for the purpose of discrediting him
if he answered in the negative, by calling other witnesses to disprove what he
said. That in this case, whatever contracts the witness might have entered into
with other persons for other loans, they could not be evidence of the contract
made with the defendant, unless the witness had first said that he had made the
same contract with the defendant as he had made with those persons, which he
had not said. They observed that the rule had been laid down again and again,
that upon cross-examination to try the credit of a witness, only general questions
could be put, and he could not be asked as to any collateral or independent fact
merely with a view to contradict him afterwards by calling another witness. The
danger of such a practice would be obvious, besides the inconvenience of trying
as many collateral issues as one of the party chose to introduce and which the
other could not be prepared to meet. Lord Ellenborough added that he had
ruled this point again and again at the Sittings, till he was quite tired of the
agitation of the question, and therefore he wished that a bill of exceptions should
be tendered by any party who was dissatisfied with his judgment, that the ques-
tion might be finally put to rest. Spenceley Quitam v. DeWillatt, 7 East, 110

Harris v. Tippet, 2 Campb. 637 ; Odairne v. Winkley, 2 Gallison, 53.


charged. And it is wholly immaterial in this view whether the
other words spoken or libel published be in themselves action-
able or not.^

Whenever the intent of the party forms part of the matter in
issue, evidence may be given of other acts not in issue, provided

^ It has been already observed, that where words have been uttered, or a libel
lias been published of the plaintiff, by which actual or presumptive damage has
been occasioned, the malice of the defendant is a mere inference of law from
the very act, for the defendant must be presumed to have intended that which is
the natural consequence of his act. Prosser v. Bromage, 4 B. & C. 247. In
such instances, therefore, it is unnecessary to give evidence of malice in fact or
actual malice, unless it may be by the way of aggravating the damages. In
other cases, the occasion and circumstances of the speaking and publishing re-
pel the action either peremptorily and absolutely, or unless express malice
exist; and in this latter class of cases, where actual malice is essential to the
action, it lies on the plaintiff to prove the fact. Where the burthen of proving
express malice is thus thrown upon the plaintiff, he may give in evidence any
expressions of the defendant, whether they be oral or written, which indicate spite
and ill will, for the purpose of showing the temper and disposition with which he
made the publication complained of

It has, however, been held, that other words or libels are not admissible evi-
dence to show the quo atiimo, unless they relate to the same subject. An action
was brought for a libel published in a periodical work called the Saii7nst or
Monthl;/ Meteor, which stated {inter alia) that the plaintiff being prosecuted by
the Attornej'-general, had fled the country that he might save himself from the
pillory. To prove the malicious motive of the defendant, the plaintiff's counsel
proposed to read extracts from a subsequent number of the Satirist, but Sir J.
Mansfield, C. J., rejected them all except one which had immediate reference to
the former libel. Finnerty v. Tipper, 2 Camp. C. 72. But it is to be remarked
that in this case there was no doubt as to the animus ; the publication was clearly
libelous in itself, and the occasion of pul)lishing did not render proof of malice
in fact necessary. As nothing turned u])on tlio defendant's real intention, the
evidence was inadmissible; for it is perfectly clear that subsequent libels can not
be received in evidence with a view to enhance the damages, for they are sub-
stantive and independent causes of action. And in the subsequent case of
Stuart V. Lovell (2 Starkie's C. 9.^), where the publication declared on was
clearly libelous, Lord Ellenborough, C. J., rejected evidence offered of the pub-
lication of subsequent libels, observing that such evidence would certainly be
admissible to show the intention of the defendant were it at all equivocal, but
that they were not admissible for the purpose of enhancing the damages. A
ease, therefore, of equivocal intention, as where the question depends on the
existence of malice in fact, differs widely in this respect from one which admits
of no doubt on the subject. Where such a doubt exists, and whore the material
question in the cause is whether the dofondant was justified by the occasion or
acted from express malice, it seems, in principle, that any circumstances are ad-
missible whicii can elucidate the transaction and etiable the jiiiy to correctly con-


they tend to establish tlie intent of the party in doing the act in
question.^ And this rests upon the obvious ground, that often it
is the only mode of showing the existence in the mind of a deliber-
ate design to do a certain act. The design in him once proved,
may properly lead to the conclusion that it is continued and

elude whether the defenchuit acted f'airl}' and honestly according to the occasior^
or mala Jide and vindictively, for the purpose of causing evil consequences.

In an action for a malicious prosecution of an indictment for perjury, evi-
dence was admitted of an advertisement published by the dei'endant pending the
prosecution, although an information had been granted for publishing that adver-
tisement. Chambers v. Robinson^ Str. 69L

In an action imputing perjury, the plaintiff was allowed to prove that sub-
sequently to the speaking of the words the defendant had preferred an indictment
against him. But in such cases the jury are not to consider the effect of such
evidence in measuring the amount of damages, but merely as a circumstance to
prove malice.

It was once doubted whether, in admitting evidence of this nature, a dis-
tinction ought not to be made between words not actionable in themselves and
those which are so. In the case of Mead v. Daubigity, Peake's C. 125, Lord
Kenyon rejected evidence of words actionable in themselves and not mentioned
in the declaration ; but his lordship afterwards changed his opinion and ad-
mitted such evidence in a subsequent case. Lee v. Jhidson, Peake's C. 166.

In Russell v. Macquister, 1 Camp. 49, evidence of actionable words spoken
after the time of those laid in the declaration, was objected to on the ground
that if such words were taken into consideration by the jury, the defendant
might be made to pay a double compensation for the same injury, since another
action might be brought for the words last spoken and the distinction between
that case and the case of words not actionable. But Lord Ellenborough, C. J.,
overruled the objection, observing that though such a distinction had once pre-
vailed, it was not fonnded in principle, and that, although no evidence can be
given of any special damage not laid in the declaration, yet, that any words or
any act of the defendant is admissible to show the q%io animo he spoke the
words which are the subject of the action.

Upon the same priciple, where a libel was contained in a political paper pub-
lished weekly by the defendant, after proof that the paper in question had been
purchased at the defendant's office, evidence was admitted of the previous sale
of other papers with the same title at the same office; and the reason of admit-
ting it was to show that the papers which purported to be weekly publications of
public transactions were sold deliberately and vended in the regular course of
circulation ; that the paper containing the libel was not published by mistake,
but vended publicly, deliberately, and in regular transmission for public perusal.

In an action where any words or other libels not specified in the declaration
are offered in evidence, the defendant is at liberty to prove the truth of the
charges or imputations which they contain, for he had no opportunity of plead-
ing the truth in justification. Starkie on Slander, 53, 54, etc.
^ Roscoe's Cr. Ev. 3 Amer. Ed. 99.


carried into effect.^ Where intent or motive is the subject of
inquiry, it is impracticable to Lay down any rule so as to confine
the evidence within any precise limits. ^



Under this head will be considered the admissibility of evi-
dence of general character.

The English cases are opposed to the admission of proof of
general character in civil cases unless the general character is
involved in the issue by the very nature of the action. Thus, in
an action of slander for imputing a felony, and for a malicious
prosecution where the defendant justified, evidence of the plain-
tiff's good chai-acter was in this case refused; but from the re-
port of the case it does not appear that the defendant had
attempted to support his justification that he had spread upon
the record by evidence. If such justification had been attempted
to be supported by evidence on the part of the defendant, no
reason is perceived why proof of general character would not
have been admissible on the part of the plaintiff upon the same
ground that it would have been admissible to repel the charge
on the trial of an indictment.^

Where there is a plea of probable cause, followed by evidence
in its support, on answer to an action for a malicious prosecution,
there the character of the plaintiff is directly in issue, and he
may, of course, prove his general good character in cases where
the crime in question is infamous. It will be perceived that gen-
eral character iif\ay be put in issue in a variety of ways, besides
those of the common case of slander or libel,* where it is to a

1 2 Phillips' Ev. 3 Amor. Ed. 05.

* Roscoe's Cr. Ev. 3d Ainericun Ed. 9.

' Cornwall v. Richardson, Ry. & Wood Nisi Prius Case, 305.

*The question is, was it proper to give in evidence publications made after
the libel "T It has not boon objected that they were libelous; and the plaintiff's
counsel put their right to reading them on the ground that they afTordod evidence
of the defendant's malice in the original publication. The nisi prius decisions
on tliis point are somewhat contradictory. All of them agree that in actions for
written or verbal slander, other and posterior publications or words, not action-


greatei* or less extent involved. Cases of criminal convei-sation,
seduction, and breacli of promise of marriage are familiar in-
stances. So in some cases of property and in actions of tort,

able, ma}' be given in evidence to show malice. In llitstellv. Maquister, 1 Camp,
N. P. 48 in the notes, Lord Ellenboroiigh said that although there had been for-
merly such a distinction, it was not founded on any principle; that any words
as well as any act of the defendant may be given in evidence to show quo animo
he spoke the words, but that the judge should tell the jury to give damages only
for the words which were the subject of the action.

In Mead and Daubigny, Peake's N. P. 12(5, and Cooh v. Field, 3 Esp. N. P.
Cas. 3H, Lord Kenyon refused to permit word.s actionable, spoken aftcrward.s, to
be given in evidence. But in Lee v. Htison, Peake, 1()G, in an action for a libel
the same judge suffered other libelous papers to be given in evidence.

Perhaps this is not the occasion to lay down any rule on the subject, it not
being necessary to this case, nor do the Court mean to do it. But I should think
it incorrect to suffer distinct libelous matter to be given in evidence, for though
the judge might instruct the jury not to give damages for such libels, yet it
would imperceptibly influence their judgments as to the damages, and thus the
defendant might be twice punished for the same offense.

On the point of misdirection, the judge's charge is objected to in three re-
spect.'f : I. In leaving a question of law to the jury, whether the y)Iaintiff had vio-
lated his duty in leaving Washington and soliciting the office of treasurer.
2. That the innuendoes give a sense not warranted by the context in this, that
the libel did not amount to the charge that the plaintiff was guilty of the crime
of receiving a quantity of counterfeit money, with intent to pass the same,
knowing it to be counterfeit, and that on this ground the judge ought to have
charged the jury to find for the defendant. '^. That the defendant's publication
of the plaintiff's trial was substantially true; that its object was to animadvert on
the legislature, and, therefore, it ought to have been submitted to the jury whether
there was malice in the defendant towards the plaintiff, as evidenced by the libel.

It must be a matter of fact whether the plaintiff's leaving Washington 'and
coming to Albany, for the office of treasurer (if he did so) was or was not a vio.
lation of duty; and this would depend upon the circumstance whether he had
leave of Congress to absent himself or not. Unexplained, it is to be presumed
that he had such permission. It can not be pretended that a member of Con-
gress is so far bound to yield his personal attendance, that absence with leave
of the body to which he belongs is a violation of duty. Congress have the right
to enforce the attendance of members, and they have a right to dispense with
such attendance; Congress are the judges, and no man is obnoxious to the
charge of abandoning his duty there, who leaves it by permission ; but this ques-
tion is at rest by the verdict of the jury.

An innuendo, as has been often decided, can not add or enlarge, extend or
change the sense of the previous words; and the matter to which it alludes must
always appear from the antecedent parts of the declaration ; but when the new
matter stated in an innuendo is not necessary to support the action, it may be
rejected as surplusage. 1 Chitty, 383 ; 9 East, 93 ; Roherts v. Camden.


charging the defendant with gross depravity and fraud upon
circumstances merely, evidence of uniform integrity and good
character are oftentimes the only testimony whicli a defendant
3an oppose to suspicious circumstances.' Thus, evidence affect-
ing the previous general character of the wife or daughter in
regard to chastity is receivahle in an action by the husband or
father for seduction, provided it refers to a time subsequent to
the act complained of. In criminal cases, Avhere the evidence
adduced for and against a prisoner is nearly balanced, the defend-
ant may give in evidence proof of good character, whicli may be
A'er}' important for his defense, though the prosecution has no
right to introduce evidence tending to impeach the defendant's
character until the defendant has attempted in the first instance
to sustain it. Until then the prosecution must be confined to

The judge adniitted the defendant's right to publish a correct account of the
plaintiff's trial, but limited this right to the publication of a true history of it;
and he stated that the defendant had put the plaintiff's acquittal solely on the
ground that Gibbs, the only witness, stood in the light of an accomplice, when
it appeared that his credit was otherwise materially impeached, and that on this
ground the plaintiff was entitled to recover.

There is not a dictum, to be met with in the books, that a man, under the
pretense of publishing the proceedings of a court of justice may discolor and
garble the proceedings by his own comments and constructions so as to effect
the purpose of aspersing the characters of those concerned. In the case of
fiWes V. Nokes, 1 East, 493, the Court laid down the true distinction, and whilst
they admitted that a fair account of judicial proceedings miglit be published with
impunity, they held that the writer could not introduce his own comments, in-
sinuating the commission of perjury. It is impossible to read the libel in this
case without understanding that the defendant meant to insinuate that the ])lain-
tiff had received the counterfeit money with intent to pass it. But it is said that
the animadversion was not on the plaintiff, but on the legislature for appointing
the plaintiff treasurer wlthotit Investigation. How was the legislature bhimable
for making the appointment unless tlic indictment and trial of the plaintiff, as
[lublislu'd by the defendant, lielil up the plaintiff as probably guilty, notwith-
standing his trial and acquittal? If the only witness stated himself to be an
aceomplife, and was otherwise tulally discredited, from the infamy of his char-
acter and Ills malice towards the phiinlid' (and on these grounds the plaintiff
was acquitted), what investigation was to be made? I am perfectly satisfied that
the libel contains a highly colored account of the proceedings, that it suppresses
for bad purposes material facts, and that it conveys insinuations of the jilain-
tiff's guilt, unauthorized by the trial and the facts which transpired at the time
of the trial; atul if sf), the infrrcncc of malice was inevitable. Thomas v. Cros-
tcell, 7 John. 2(\

Online LibraryWilliam J HenryEcclesiastical law and rules of evidence, with special reference to the jurisprudence of the Methodist Episcopal church → online text (page 31 of 58)