| Iowa | Jun 15, 1856
The defendants first assign for error, the overruling of their demurrer to plaintiff’s petition. The record shows, that the cause coming on to be heard, on defendants’ demur er to the plaintiff’s petition, the same was overruled ; but we find no demurrer, or further reference to it, in any part of the transcript. What' were the grounds of the demurrer, we have no means of knowing, and cannot, therefore, say that it was improperly overruled.
The next assignment of error, relates to the refusal of the court to grant some of the defendants a separate trial. It appears that some of the defendants, filed their affidavit, setting forth that certain of the other defendants were material and necessary witnesses for them; that they could prove matters material to their defence by said co-defendants, which could not be proved by any other witnesses; and that justice required that they should have separate trials. A motion, based upon this affidavit, was overruled, on the ground that said co-defendants would not be competent witnesses on the trial of the others. The bill of exceptions proceeds!» state, that “ the court did not hold in its discretion, that justice would
As to this, it is sufficient to say; first, that no such question wms made to the court, but the claim for separate trials was based alone upon the necessity of using the other defendants as witnesses. In the second place, we see nothing to' satisfy us, that the discretion reposed in the court below, has been abused. Under the Code, such separation may be allowed by the court, “ whenever in its opinion justice will be thereby promoted.” Where such motion is granted, or refused by the court, in the exercise of its discretion, we should require a very strong showing indeed, before we should hold it to have been improperly exercised. In this case, the defendants are charged with having written, signed, and published, certain scandalous and defamatory matter of, and concerning the plaintiff. To sustain the petition, a certain paper or papers, are introduced, purporting to be signed by all of said, defendants, in their own proper handwriting. It would, therefore, appear to have been one act — a publication made by them, in carrying out a common purpose; and we can scarcely conceive any good object that could be accomplished in taking up the time of the court in having separate trials; unless, indeed, those not on trial, would have been competent witnesses for those on trial — and this question we now proceed to examine. We do not think, under such circumstances, that they would have been competent.
After the testimony of the plaintiff was closed, if no evidence had been offered, showing the guilt of one, or any number, of said defendants, they might, on motion, have had a verdict in their favor, and then have been introduced for their co-defendants. But so long as they remain parties to the record, and liable for costs, and any judgment that might be rendered, they are incompetent. By having separate trials, the liability of each for any judgment that might be rendered, is not changed. And especially is it so,
And the argument that the plaintiff made all these persons defendants, to prevent them from being witnesses, loses its force under this rule; and if, by the operation of such a rule, they are excluded, it is but the result of their own wrongful act, and they have no ground, either legally or equitably, to complain. This conclusion, we think, is abundantly sustained by authority, as well as reason. Indeed, the rule is so well settled, that it is now but seldom controverted. In this case, the defendants were all served — all joined in the answer — as to none of them, had the cause been determined, either by default or verdict after trial; and under such circumstances, we are aware of no case that will justify the doctrine urged by appellants. On this subject, see Bent v. Baker, 3 T. R. 27, reported in 2 Smith’s Leading Cases, 39; and particularly page 88 of the notes by the American editors. Also, Sawyer v. Merrill, 10 Pick. 16; Commonwealth v. Marsh, Ib. 57; Van Deusen v. Van Slyck, 15 Johns. 223" court="N.Y. Sup. Ct." date_filed="1818-05-15" href="https://app.midpage.ai/document/van-deusen-v-van-slyck-5473987?utm_source=webapp" opinion_id="5473987">15 Johns. 223; Moore v. Eldred, 3 Hill, 104, and the note; 1 Phillipps’ Evid. 57; 3 Ib. 55, 61; 1 Grreenl. Ev. §§ 329, 347, 358.
The cases cited by appellants, establish no contrary rule. In Stockham v. Jones et al., 10 Johns. 21" court="N.Y. Sup. Ct." date_filed="1813-01-15" href="https://app.midpage.ai/document/stockham-v-jones-5473133?utm_source=webapp" opinion_id="5473133">10 Johns. 21, one of the defendants was not served, nor did he appear, or plead. Under such circumstances, he was held competent for those who were served. In Gould v. Janus, 6 Cowen, 369, the witnesses offered were not sued, nor in any manner parties to the record. They were objected to as being trespassers, like the defendants, on the loom in quo, and were admitted, for the reason that the verdict could not be evidence for or against them. The case referred to in 1 Phillipps’ Ev. 119, was where two actions had been brought against two persons for the same assault, and it was held that in the action against one, the
It further appears, that the defendants, after proving by a witness, that the general character of the plaintiff was bad, and that he was reputed to be a “ slanderer,” proposed to prove that said plaintiff had been “ guilty of speaking slanderous words of others, in fact, which the witness heard,” which was objected to, and the objection sustained. This testimony was clearly inadmissible. Its object is not perceived, nor has any legitimate one been pointed out in the argument. It was not even proposed to prove that plaintiff slandered the defendants, but that he slandered others. And without speaking of the many objections to this testimony, another controlling one is, that the effect of the testimony was to prove individual or particular acts, instead of general character. This is not permissible.
It is next objected, that the court erred in excluding the testimony of one French. This witness being called by the defendants, stated that plaintiff’s general character, in the neighborhood where he resided, was bad; and defendants then offered to prove by the witness, that plaintiff was generally reputed a malicious man, which being objected to, was excluded. This testimony is claimed to have been admissible, as tending to show that plaintiff was guilty of the arson said to be charged in the libel. "Without determining that it would be admissible for any such purpose, under a proper state of pleadings, it is sufficient to say, that no plea of justification appears in the record, nor is there anything to show that such an issue was made. The only plea, already stated, is in denial of the libel charged in the petition. If even admissible under a plea of justification (which we by no means admit), it certainly cannot be, under the issue
It also appears by the bill of exceptions, that a short time previous to the burning of the school-house, referred to in the libel, it was attempted to be burnt; and that about this time, as another witness testifies, he passed the house late at night, saw a great' light therein, and heard persons talking inside, but who they were he does not state, nor is it otherwise shown. By another witness it was proved, that one Bennett was a near neighbor of plaintiff) and intimate with him, and had enmity .toward one of the defendants; and that this Bennett had proposed to witness to assist plaintiff in a certain other lawsuit against said defendant. And it further appeared, that said Bennett and plaintiff had voted against having a school in this school-house ; that plaintiff knew that Abrams (one of the defendants) would probably be employed as a teacher; that said Abrams had been employed, and commenced teaching four days before the house was burnt; that plaintiff had for some years past associated with Bennett and two other persons, and had but little communication with the defendants; and finally, that on the next day after the burning, plaintiff and Bennett were seen “ talking together in a hollow near the road, a short distance from plaintiff’s house.” And thereupon defendants offered to prove, that Bennett had proposed to witness to go to the house of Abrams and steal chickens, take them to the schoolhouse, have a feast, and then burn up chickens and feathers, together with the house, which testimony being objected to, was excluded, and this is the next error assigned.
We think the testimony was properly rejected. Taking all the preceding circumstances together, they amount to this: that Bennett and plaintiff were intimate, and acted together in an unfortunate difficulty which had arisen in the school district, and that Bennett favored plaintiff’s cause
The defendants asked the court to instruct the jury, “that they need not be satisfied beyond a reasonable doubt, as to the matters of their defence; but it is only necessary that they should be satisfied from the evidence and all the circumstances of the case before them, of the truth of the matters so alleged in defence.” This instruction was refused, and defendants excepted. We may say, in the first place, that we cannot see to what part of the defence this instruction was applicable. It would seem to point to a plea of
After the verdict was rendered, the attorney for defendants filed his professional statement, alleging that said jurors ■agreed to make up their verdict by marking each a certain sum, and dividing the aggregate by twelve; and that some .-of the jurors admitted these things, but refused to give any ■statement or affidavit, as to the manner in which they made up their verdict. Thereupon, counsel moved for a rule on •¡said jurors, to answer as to the truth of said matters, which motion was overruled, and this is now assigned for error. Our Code provides that the affidavits of jurors may be taken, •and used in relation to applications for new trials, § 1810. This is an innovation upon the common law rule, and we ■are not disposed to extend it beyond what is fairly justified •by the language used. It only permits that to be done, which, under no circumstances, was previously allowed. If jurors voluntarily give such affidavits, they may be used; but it was not designed to compel them, by rule, to answer pnder oath as .to how, or in what manner, they made up ■their verdict. To allow such a practice, would be to invade ■•and interfere with the rights of jurors, and the discharge of their duties in the jury-room, to an extent never contemplated by our Code. If, there has been fraud or unfair dealing on their part,-of course, they are not beyond reach of judicial inquiry; but upon a mere allegation of their having
It is further claimed, that-the jury in this case, were the judges of both the law and the fact, and, therefore, it was error to give them any instructions. The Code provides, that in all indictments or provocations for libel, the jury,, after having received the direction of the court, shall have the right to determine, at their discretion, the law and the fact. Section 2772.
' This objection cannot avail defendants, for the following reasons: First, no objection was made, at the time, to the court’s instructing the jury, and it is now too late to make it. Second, the section quoted, expressly gives the court the right to give directions to the j ury, which we construe to mean, what are commonly termed instructions. And in the third place, we understand this section to refer to criminal prosecutions, or trials upon indictment, and not to a civil proceeding to recover damages.
Other errors are assigned, but as they are all substantially passed upon, in what has already been said, and have not been urged in argument, we need not further extend this opinion. We see nothing to justify us in disturbing this judgment, and it is, therefore, affirmed.