CHAPTER XVII.

EVIDENCE FOR DEFENDANT.

What evidence is admissible depends upon what plea or answer is interposed-What may be proved under the general issue-Evidence to support a justificationPlaintiff's reputation in issue-Inquiry limited to plaintiff's general reputation-And to his reputation prior to the publication complained of—Truth in mitigation-Conduct of plaintiff leading to belief in truth-Report or suspicion of plaintiff's guilt in mitigation-Plaintiff's standing and condition in society-Prior or subsequent declarations of defendant-Heat and passion-Previous publications by the plaintiff-Controversies between plaintiff and defendant prior to the publication-Circumstances not admissible in mitigation.

§ 402. What evidence the defendant may give depends upon what plea or answer he has interposed."

1 We have already (note p. 126, ante) referred to some decisions on the proof of intent; we here add some others which have come to our knowledge since the previous note was written. In Smith v. Higgins, 82 Mass. (16 Gray), 251, it is said: In slander the good faith of the defendant and the feelings which prompted him to speak the words alleged in the declaration, being properly in issue, he is competent to testify concerning them. The testimony of the defendant concerning his motive in speaking the words, his belief in their truth, and the absence of ill-will or malice toward the plaintiff is admissible. And to the like effect, see Wilson v. Noonan, 35 Wis. 321; McKown v. Hunter, 30 N. Y. 628; Turner v. O'Brien, Supreme Ct. Nebraska, March, 1877; 3 Law & Eq. Reporter, 628. In White . Tyrrell,

5 Ir. L. R. N. S. 477, the defendant having written a letter, was permitted to be asked the question whether in writing the letter he had the intention of

His proof must correspond with his plea. Under the common-law system of pleading and procedure, many

provoking a challenge. In Dillon v. Anderson, 43 N. Y. 236, the action was on contract, defense, that contract was made jointly with H., who was not made a party. The contract was in writing and signed by defendant. H. was named in the body of the paper as a contracting party, but it was not signed by him; on the trial, the defendant was called as a witness on his own behalf, and asked by his counsel, "Did you intend to make an individual contract?" The question was disallowed, and held in the Court of Appeals: "The testimony called for was not proper. There are authorities that a witness may be asked his motive or intent in doing an act. ** We think that they hold no more than this; that where the doing the act is not disputed, but is affirmed, and whether the act shall be valid or invalid hangs upon the intent with which it was done, which intent from its nature would be formed and held without avowal, then he upon whom the intent is charged may testify whether he secretly held such intent when he did the act. Thus an insolvent assignor in trust, charged with the fraudulent intent to hinder and delay creditors, may be called in support of the deed of trust, and may say, whether, when he made it, he had no fraudulent purpose; and one sued for a malicious prosecution may testify that in setting on foot the legal proceedings he believed that there was cause for them. And as an extreme case which we are not willing to extend, one against whom the defense of usury has been set up, has been permitted to testify what was the intention in stipulating for a sum reserved out of the face of a note. But that an act should be held to have or not to have effect, and one party to it to be bound or not, as the other party to it should, by his undisclosed purpose, have determined, is warranted by no sound principle." In Robbins v. Fletcher (101 Mass. 115.), an action of slander for accusing plaintift of fornication, defendant having denied, in his testimony in chief, that he spoke the words alleged, or that he had any ill-will toward the plaintiff, may be asked on cross-examination whether he did not, before the time when it was contended that he uttered the words sued on, have a hostile feeling toward a person whom there is evidence that he spoke of as the other party to the offense. And where the defendant testified to having no ill-will towards plaintiff, it was held he might be asked on crossexamination whether he had not brought suits against the plaintiff, but he cannot be asked what were the subject-matters of those suits. (Boynton v. Boynton, 43 How. Pr. R. 380.) In an action for malicious prosecution, defendant's counsel proposed to ask defendant whether, in procuring the warrant, he acted without malice. The question was disallowed, and, by the court, "It was for the jury to say whether the defendant acted maliciously, and to allow the question would be substituting the witness in place of the jury to determine one of the most important questions in the cause." (Lawyer v. Loomis, 3 Sup. Ct. Rep. [T. & C.] 396.) In an action against defendant as superintendent of the poor, to recover for maintenance of a pauper alleged to have been improperly removed by him, with intent that the pauper should become chargeable to another county, held defendant might be asked, Did you send the pauper from the county of H. in good faith? (Cortland Co. v. Herkimer Co. 44 N. Y. 22.) It was held not proper to ask a witness, What would you have done with the proceeds if you had effected a sale? (Cowdrey v. Coit, 44 N. Y. 391.) Held not proper to ask a witness what was his intent in taking more than seven per cent. interest. (Fiedler v. Darrin, 50 N. Y. 443, 444.) And in a prosecution for seduc

matters of defense might be given in evidence under the general issue which now require to be specially pleaded. So, too, under the common-law system, mitigating circumstances could not be pleaded, but were admitted in evidence under the general issue; and this is still the rule where there is not any statutory provision on the subject. In New York and some other States, provision is made by statute allowing the defendant, in actions for slander and libel, to set forth in his answer the mitigating circumstances he will prove upon the trial. Some of the effects of these statutory provisions have already been referred to under the head of Pleading; other effects will be noticed hereafter.

§ 403. Under the general issue the defendant was at liberty to prove anything which destroyed the plaintiff's cause of action.' He might disprove the fact of publication, or show that the matter published was not of an injurious character, or that the publication was privileged,

tion, held not proper to ask the woman, "Would you have consented to it (the intercourse) without a promise?" (The People v. Cook, 2 Sup. Ct. Rep. [T. & C.] 404.) A question to witness, "In signing indorsément, did you intend to adopt the seals of the obligors?" not allowed. (Brown v. Champlin, 3 N. Y. Weekly Dig. 189.) In an action for slander, defendant was not allowed to be asked whether, in making the publication, he had any thought of injuring plaintiff. (Harwood v. Keech, 6 Sup. Ct. Rep. [T. & C.] 665; 11 Sup. Ct. Rep. [4 Hun], 391.) On a trial for an assault with an axe, it was held proper to ask the prisoner what was his "intention in taking the axe from the shed to the house." (Kerrains v. The People, 60 N. Y. 221.)

1 Barber v. Dixon, 1 Wils. 45; and see O'Donoghue v. McGovern, 23 Wend. 26. Where the words clearly impute a felony, if the defendant do not justify, he cannot show that the words related to an act which might have been innocent. (Laine v. Wells, 7 Wend. 175.) In New York, the defendant may examine the plaintiff as a witness before the trial, and if, on such examination, the plaintiff refuses to answer a proper question, his complaint may be struck out. (Richards v. Judd, 15 Abb. Pr. Rep. N. S. 184; 2 Sup. Ct. Rep. [T. & C.] 479.)

2 O'Brien v. Clement, 15 Law Jour. Rep. 285, Ex.; 3 D. & L. 676. Where the defense is privileged communication, it need not be specially pleaded. (Lillie v. Price, I Nev. & P. 16; 5 Dowl. 432; Richards v. Boulton, 4 Up. Can. Q. B. Rep. O. S. 95; Abrams v. Smith, 8 Blackf. 95; Stannus v. Finlay, 8 Ir. Rep. Com. Law, 264.) But it may be specially pleaded (Dunn v. Winters, 2 Humph. 512), and it

as being a fair comment on a matter of public concern; any circumstances which tended to disprove malice; or that plaintiff procured the publication with a view to an action; and where the libel consisted of a report of proceedings the publication of which was not privileged, it was held that it might be shown under the general issue and in mitigation that the report, although not correct, was an honest one, and intended to be a fair account of the transaction referred to. The general issue put in issue the malice in making the publication, and amounted to a denial of the special damage, and the

seems it must be pleaded in Massachusetts. (Goodwin v. Daniels, 7 Allen [Mass.] 61.) In New York, it must be pleaded. In England, in actions of slander of the plaintiff in his office, profession, or trade, the plea of not guilty will operate to the same extent precisely as at present in denial of speaking the words, of speaking them maliciously and in the sense imputed, and with reference to the plaintiff's office, profession, or trade; but it will not operate as a denial of the fact of the plaintiff holding the office, or being in the profession or trade alleged. (Reg. Gen. H. T., 4 Will. 4; 2 C. & M. 23; 10 Bing. 477; 3 Nev. & M. 9; 5 B. & Adol. 9.) All matters in confession and avoidance shall be specially pleaded. (1b.)

1 Lucan v. Smith, 20 Jur. 1170; 38 Eng. Law & Eq. Rep. 395.

2 Weaver v. Hendrick, 30 Mo. (9 Jones), 502; Smith v. Smith, 39 Penn. St. R. 441; Sims v. Kinder, 1 Carr. 279; Van Deusen v. Sutphin, 5 Ohio, N. S. 293; Swift v. Dickerman, 31 Conn. 285; Williams v. Miner, 18 Conn. 464; Thomas v. Dunaway, 30 Ill. 373; Brunswick v. Pepper, 2 C. & K. 683; Remington v. Congdon, 2 Pick. 310; Gilman v. Lowell, 8 Wend. 573. And in New York under a general denial and a proper statement in the answer, any circumstance to disprove malice may be shown, although it tended to prove the truth of the charge. (Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 N. Y. 67; Dolevin v. Wilder, 34 How. Pr. Rep. 488.) Where there is any, the slightest doubt in the mind of the judge as to whether the facts set up in mitigation tend to disprove malice, he should permit them to be proved, and submit the question of malice to the jury. (Id.)

3 See ante, note 2, p. 159. In an action for slander, plea the general issue. Held, proper to refuse to charge "that if the defendant did no more than repeat a report which originated from the plaintiff's levity and carelessness, the plaintiff could not recover." (Fitzgerald v. Stewart, 53 Penn. 343; see apparently contra, Shirley v. Keatly, 4 Cold. [Tenn.] 29.) Plaintiff's motive in bringing the action is immaterial to the issue on a plea of justification. (Bradley v. Kennedy, 2 Greene [Iowa], 231.) 4 Smith v. Scott, 2 Car. & K. 580; and see East v. Chapman, Mo. & Malk. 46; Charlton v. Watson, 6 C. & P. 385.

5 Keegan v. Robson, 6 Up. Can. Q. B. 375.

6 Wilby v. Elston, 8 C. B. 142. A traverse of special damage held unnecessary and improper. (Smith v. Thomas, 2 Bing. N. C. 372; see Perring v. Harris, 2 Moo. & Rob. 5; Custis v. Sandford, 4 Ir. C. L. 197.)

I

general good reputation of the plaintiff (§ 406), but it admitted the inducement and the falsity of the charge.* The defenses of accord and satisfaction, former recovery, truth, and illegality of plaintiff's occupation, must be specially pleaded (§§ 183, 250, 251, 354, 409), to enable the defendant to give evidence of them on the trial.

404. As to the proof of a justification, it is held that, in an action for slander or libel, the charge complained of being the commission of a criminal offense, the same degree of evidence is necessary to sustain a plea of justification as would be necessary to convict the plaintiff in a criminal prosecution for the same offense.3 At least the defendant must prove the crime charged to the satisfaction of the jury, and beyond a reasonable doubt. The plea must be substantially proved," or the plaintiff is entitled to recover.? Where the charge is crime, a conviction of the plaintiff of the crime is, in general, admissible to sustain a justification, but it is only prima facie evidence, and must be excluded if the de

1 Fradley v. Fradley, 8 C. & P. 572; Power v. Heming, 10 M. & W. 564 ; Gwynne v. Sharpe, 1 C. & Mar. 533.

Sheahan v. Collins, 20 Ill. 325.

3 Landis v. Shanklin, 1 Carter (Ind.) 92; Shoulty v. Miller, Ib. 554; Gants v. Vinard, Ib. 476; Newbit v. Statuck, 35 Maine (5 Red.) 315; Dwinells v. Aikin, 2 Tyler, 75; Seely v. Blair, Wright, 683; Steinman v. McWilliams, 6 Barr, 170; Willett v. Harmer, 8 C. & P. 695; Swails v. Butcher, 2 Carter (Ind.) 84; Woodbeck v. Keller, 6 Cow. 118; Forshee v. Abrams, 2 Clarke (Iowa), 571; Merk v. Gelshaeuser, 50 Cal. 631; contra, Barfield v. Britt, 2 Jones L. (N. Car.) 41; Gorman v. Sutton, 32 Penn. 247; Sauter v. McEwen, 8 Blackf. 495; Wonderly v. Nokes, 8 Blackf. 589; Folsom v. Brawn, 5 Foster (25 N. Hamp.) 114; Kincade v. Bradshaw, 3 Hawks, 63.

4 Offutt v. Earlywine, 4 Blackf. 460. Evidence of plaintiff's being suspected is not sufficient. (Commons v. Walters, 1 Porter, 323; Knight v. Foster, 39 N. H. 576.)

Shoulty v. Miller, 1 Ind 554; Tucker v. Call, 45 Ind. 31.

6 Napier v. Daniell, 3 Sc. 417; 2 Hodges, 187; 3 Bing. N. C. 77; Forrest v. Hanson, I Cr. C. C. 63. Proof of adultery. (Ellis v. Buzzell, 60 Me. 209.)

Kincade v. Bradshaw, 3 Hawks, 63.