Downs v. Hawley

112 Mass. 237 | Mass. | 1873

Colt, J.

The declaration in this case contains three counts. At the trial, the plaintiff relied only on the first and last.

The first count alleges that the defendant publicly accused the plaintiff of the crime of sodomy by words spoken of him substantially as set forth. The language used on two distinct occasions is recited, and the whole is followed by the allegation that,, by the words so publicly uttered in presence of divers good citizens of this Commonwealth, the defendant intended to accuse the plaintiff of the crime charged.

The last count alleges that the defendant publicly accused the plaintiff of the same crime by words spoken in the presence of divers good citizens of this Commonwealth, and then proceeds t$ set out in substance the words used on two different occasions, each time imputing the same crime.

The objection that the first count contained no charge of crime, if of any weight, and the objection that each count contained two distinct causes of action, should have been taken by demurrer. Lee v. Kane, 6 Gray, 495. Clay v. Brigham, 8 Gray, 161. It is sufficient if at the trial there are facts enough proved to establish a cause of action which has been informally stated in the pleadings; And it is to be presumed that the jury were correctly instructed in this respect. Robbins v. Fletcher, 101 Mass. 115.

The action of the court as to requiring the plaintiff to elect upon which cause of action he would rely, was not open to exception upon the facts here stated. Sheffill v. Van Deusen, 15 Gray, 485. At the close of his evidence, the plaintiff elected to rely on the first and last counts, and upon the evidence of witnesses named by him in support of them. The evidence of these witnesses had a tendency to.prove each cause of action stated. The judge was not asked to restrict it, or any part of it, to either count, or to any part of either count. Where the declaration does not attempt to set out the precise language, it is sufficient to prove the substance of the words used, and the sense and manner of speaking them. And if the slanders are several and independent, it is sufficient to prove as many of them as constitute one of the slanderous accusations. Whiting v. Smith, 13 Pick. 364. 2 Greenl. Ev. § 414.

The judge was asked to rule that there was a substantial variance between the words alleged and the evidence of each of the witnesses relied on. This he declined to do, but left it to the jury, with the remark that it would be sufficient if they found the language used to be the same in meaning as the language of the declaration. We cannot see that there was any error in this refusal. The language of the several witnesses seems to be capable of the meaning attributed to it in the declaration, and sufficient to impute to the plaintiff the crime charged. The defendant is responsible for the meaning which the words used by him, reasonably interpreted, convey to the understanding of the person in whose presence they were uttered. When there is a question as to the import of the words, it is to be submitted, with proper instructions, to the jury. Brettun v. Anthony, 103 Mass. 37. Fowle v. Robbins, 12 Mass. 498. Dunnell v. Fiske, 11 Met. 551. We are aided by the consideration that evidence of declarations of the defendant upon the same subject, at other times, conveying the same imputation, although in substantially different language, are admissible for the. purpose of showing malice. Baldwin v. Soule, 6 Gray, 321.

There was no error in admitting the deposition of Stamm, although it was not annexed to the commission under which it was taken. It was all returned to the clerk’s office in the same sealed envelope. It is not suggested that there is any doubt of its identity, or any suspicion of fraud or improper conduct. Shaw v. McGregory, 105 Mass. 96.

The testimony which was objected to in the deposition of Stewart was rightly excluded as incompetent. The defendant could not justify the alleged slander by proving another criminal act of the same kind.

The court declined to rule that evidence of statements by the defendant in the presence of only one person was not competent to prove either count in the declaration. The validity of the exception taken to this depends upon the construction to be given to the allegations in the first count. Publication is essential, and must be alleged and proved. If alleged generally, it may be proved by any person who heard it. It is always sufficient to prove the substance of the issue. If the pleader adds anything which is intended to narrow and limit that which is essential, then by a familiar rule such allegation becomes descriptive of the identity of that which is legally essential and must be proved as matter of substance. Whether an allegation is of this character is a point to be determined by the judge in the case before him, and depends upon the nature of the averment itself, its relation to and connection with other necessary averments, or the technical manner in which it is framed. Ho precise rule can be laid down by which it can in all cases be determined. 1 Greenl. Ev. §§ 56, 57. In Chapin v. White, 102 Mass. 139, where it was alleged that the defendant publicly accused the plaintiff of a crime “ by words spoken in the presence and hearing of divers citizens of this Commonwealth, substanfcially as follows,” setting forth the words, it was held that proof of a speaking in the presence and hearing of only one person not a citizen of the Commonwealth was a variance, because the pleader in that case had seen fit unnecessarily to limit the publication charged. In the case at bar there is no occasion for the application of this rule. ' The first count alleges the publication generally in the usual form, and sets out the words spoken. It would have been sufficient if it had stopped there. An averment is added that, by the words so publicly uttered “ in the present,» and hearing of divers good citizens of this Commonwealth,” the defendant intended to accuse the plaintiff of the crime charged. The wrong committed was sufficiently charged without this last clause, in the form provided by the Practice Act of 1852, and used since then. We cannot construe this clause as intended by the pleader, to limit the publication relied on and practically charged, or to describe or identify the slander as only communicated to more than one good citizen of the Commonwealth. If that had been the intention, the qualification would have followed the general charge of publication, and preceded, as in the case cited, the setting forth of the words spoken. These allegations in regard to publication are plainly divisible. Whatever may be said of the last count in this respect, it is enough to dispose of this exception that the evidence was, for the reasons stated, admissible under the first count. The defendant objected to its admissibility under either. He did not ask the judge to restrict its application or to require the jury to return separate verdicts on such counts. It does not appear, therefore, that they did not apply the evidence properly, or that the defendant has suffered any injury from the ruling complained of. Richmond v. Whittlesey, 2 Allen, 230, 234. The judge ruled that if Stamm was not a citizen of this Commonwealth, his testimony must be laid out the case, and this was sufficiently favorable to the defendant in any aspect. Exceptions overruled.