32 Pa. 95 | Pa. | 1858
The opinion of the court was delivered by
The words declared upon, impute to plaintiff the offence of fornication, committed with four different persons, at as many distinct times and places. And it was ruled by the court below, and is contended here, that the proving of one of them to be true, furnishes a complete defence, under the plea of justification, to all. There is some distinction, between the proof required of a plaintiff to maintain an action for words, and such as will establish a full defence under that plea. For although there must be no variance, in substance, between the words laid and those proved, yet under such plea, the evidence to sustain it effectually must be equally certain and circumstantial, as would be necessary to convict of like offences in the criminal courts. The law of pleading requires the slanderous words to be laid in the narr. as spoken, and the law of evidence requires them to be proved as laid; yet it is unnecessary, in order to maintain the action, to prove all the words laid, provided enough of them, actionable in themselves, or made so by proper colloquiums and innuendoes, are established.
But this is not the case in making out a defence in bar of the whole action on this plea; for in reality, a justification pleaded is an admission of record, by defendant, that he spoke the words as laid in the narr., and with the same meaning therein averred: 2 Saund. Pl. & Ev. 804; Johns v. Gittings, Cro. Eliz. 239. He thus, in general, by that plea, takes the affirmative of making good the charge, as circumstantially as it is declared upon; and failing in part, he necessarily fails altogether, so far, at least, as the plaintiff’s legal right to recover is involved. And the justification to be relied upon must be of the specific offences as alleged, for if it extend not so broad as the allegation, or go beside it, or fall short of it, the defence will be held insufficient. Nor is it enough to justify the words literally, but it must in addition be co-exten-sive with the legal and effective sense. See notes to Howard v. Thompson, 1 Am. L. Cas. 178-9; also Skinner v. Powers, 1 Wend. 451. In the latter case, it is said by Chief Justice Savage, that a charge of misconduct, of any specific kind, is not justified by proving plaintiff guilty of misconduct of a similar character.
For further illustration of these views, we may take the record of this cause. Suppose the parties had gone to trial on the plea of not guilty, merely, and the plaintiff had only proved the speaking of the words, James Wible testifies, but in reference to him, designated as a collier, it would not have been sufficient to support the action. Much more, then, should it be held insufficient to defeat the action, on this justification plea, both as to the words laid in the narr. and those proved against defendant on the trial. This is as plain almost as a demonstration, even on the basis that the required extent of each party’s evidence is equal.
We cannot fail to know that the words laid, and those proved by plaintiff, substantially corresponding as they do, import a much lower state of female depravity, than that proved by defendant’s witness, bad as it is.
The man who will wantonly and maliciously speak thus of a young girl, with whom he has placed himself on terms of social equality, and then deliberately persist in repeating and spreading the same upon the records of justice, from whence no repentance or reformation can ever expunge or efface, and in addition, endeavour to inflict a deeper sting, and extend her disgrace, if possible, by a shameless public acknowledgment of his brother, that he had been a frequent participator in the avowed infamy of a woman he admitted to have said he wanted for a wife — such a party to a cause of this kind and under these circumstances, can have no just reason to complain of being judged by the rigorous rules of the law. He certainly occupied no position to ask that doubtful points be ruled in his favour, or expect special indulgence at the hands of a jury.
We have thus fully discussed every principle raised by the record. The exception to the admissibility of the testimony of James Wible is not sustained. A defendant may plead not guilty as to part of the words declared upon, and justify the rest, or in our practice, plead the general issue, and justification, as was done here, and make out with his testimony as much on the latter as he can. The testimony was clearly inadmissible under the general issue, but was not so, nor entirely irrelevant, under the other plea. The effect of it, however, was not as extensive as the court below instructed the jury, and the judgment must be reversed.
Judgment reversed, and a venire de novo awarded.