46 Wis. 290 | Wis. | 1879
The complaint in this case does not assume that the obscene word charged to have been used in connection with the other words, is actionable per se, but imputes to it and the other words a criminal meaning by defining them by innuendo, and by alleging as to whom and under what circumstances they were spoken, by a colloquium. The answer, although denying the use of this identical word, as well as of the other words charged, admits the speaking of words of
It is not claimed that there was any variance between the complaint and the proof, except as to this one obscene word; and as both parties, by their pleadings, have thus treated this word as not actionable in itself, such pretended variance is immaterial, and must be held to have been waived. The law as to variance in actions for slander, and which has special application in this case, is, “ that it is sufficient if the gravamen of the charge as laid, be proved.” Townshend on Sland. and Lib., § 365, and cases cited in note 2.
If the defendant had designed to make the speaking of the words as laid a material issue, his denial should have been direct and unqualified; but he has seen fit to admit the speaking of words of the same import and criminal meaning, and justify their speaking by an allegation of their truth, and by charging the commission of the crime imputed both by the words charged and the words admitted to have been spoken. If the defendant did not speak the words as charged, that is the end of the case, and it is immaterial whether he used other words, or -whether such other words were true or false.
After the defendant has denied the words charged, he will not be allowed to allege the speaking of other words imputing the same crime, and plead their justification. Andrews v. Vanduzer, 11 Johns., 38.
If the speaking of the words is to be justified at all, they must be justified as laid; and it is virtually a repetition of the slander, which will go to the aggravation of the damages upon failure of proof, the risk of which the defendant in all such cases incurs, and the advantages of which are secured by the plaintiff; and both of the parties to such issues are equally notified by the pleadings of the expected proofs. To place upon the records of the court, by answer, other slanders
It is evident that the county court construed the answer in justification as applicable to the words charged in the complaint, and as setting up matters which, if proved, might properly be considered by the jury, either in justification or mitigation; and the case seems to have been tried very fully, upon both sides, upon this very proper and reasonable theory; and indeed, the very language of the answer in matters of justification, in its most natural meaning, refers to the words charged in the complaint.
In view of this construction of the pleadings, there was not only no variance between the complaint and the proofs (and the county court very properly denied the motion of the defendant for a nonsuit on that ground), but the objection of the defendant to any evidence under the complaint was properly overruled, and the amendment of the complaint on the trial was properly allowed.
The point made that the act charged was not criminal by the laws of the state of Minnesota, where the words were spoken, or that it was incumbent upon the plaintiffs to prove that it was so criminal by the laws of that state, was not well taken; for, although the words were spoken in the state of Minnesota, they charged the act to have been committed in this state, in which by our law it is made a crime, as was proved by both parties on the trial. That words are slanderous per se, does not depend upon the laws of the state where they are spoken, but upon the laws of the state in which the
The evidence of Goldhammer relating to the circumstances under which he had seen- the plaintiff Sophia on other occasions, and to the appearances within a certain room, when no evidence had been given to prove that anything criminally improper had taken place on such occasions or in said room, was clearly immaterial, and properly excluded by the court.
The question put to Mrs. Best, and a similar one to-Mrs. Winegar, “What has been her character and reputation, so far as you know, as a lady of morality, virtue and chastity? ” was objected to because of the qualification, “ so far as you know,” without the witnesses being first asked whether they knew her general character and reputation, and answering that they did.
In any case, where the character of a party is properly in question, as in this case, it is sufficient to prove such character by witnesses who are well acquainted with the party in the neighborhood of his residence, without first asking them if they know the character of such party. In such a case, the question is not merely of reputation founded upon the speech of people, but of actual knowledge of the character of the party, and such knowledge is a proper subject of inquiry by any proper questions tending to that end. Townshend on Lib. and Sland., § 408; Senter v. Carr, 15 N. H., 351; Douglass v. Tousey, 2 Wend., 352. One of these witnesses had testified that she had known the plaintiff Sophia, where they had both resided, for eight, and the other one for nine, years. This was certainly sufficient to qualify them to speak of her character. The objection was properly overruled.
The question to the witness John Breskiller, tending to prove, and the general offer to prove by the witness, what another witness (Plunkett) said or did not say in a certain conversation with the plaintiff John Dufresne, after said witness Dufresne had testified to a statement made by Plunkett
That the original charge to the jury was not in writing when given, was an objection urged upon the motion for a new trial, and was overruled by the court; and the decision of the court of such a question, upon facts within judicial knowledge, when the fact that said charge was in writing is stated in the bill of exceptions, will not be reviewed by this court. The bill of exceptions becomes a record importing absolute verity in this court, until changed or amended in a proper way.
The exceptions to the charge of the court, as found in the bill of exceptions, and which are very numerous, are more critical and plausible than substantial.
The comments upon the evidence, although quite free and somewhat extended, do not appear to be unwarrantable or substantially unfair; and we think the court very clearly gave to the jury the correct rule of evidence in such a case, and in language not calculated to mislead or difficult to be understood, that the defense might be found upon the weight or preponderance of the evidence, and not beyond a reasonable doubt.
That part of the charge given, and the instructions refused, in relation to malice as affecting the question of damages, were immaterial, and could not have had, and most evidently did not have, any effect whatever; for the amount of the verdict repels the idea of any aggravated or exemplary damages having been allowed by the jury; and it does not appear that any of the alleged errors substantially affected the result.
A motion for a rehearing was denied.
