4 Wend. 320 | N.Y. Sup. Ct. | 1830
The charge complained 0f jn declaration not having been made against the plaintiff by name, it became necessary for him to shew either by a or averments that he was the person intended, and that the defendant meant to be understood as charging him with having stolen his property.
The substantial words, that is, the words imputing the crime, were proved as laid in the first count. But the words which located the residence of the thief and designated the person intended to be charged, were not proved as laid. That part of the count is as follows : “ I (the defendant) will not call names for fear of being sued for slander; but the thief lives between here (the house of Putnam Bigelow where the words were spoken) and my house and the plaintiff then avers that he was the only person who lived between Bigelow’s and the defendant, and the averment is sustained by the evidence. But the words proved in relation to the residence of the thief are not that he lived between Bigelow’s and the defendant, but that he lived east of the defendant, and within two miles. ■ These are not only different words from those charged, but it is shown that several persons besides the plaintiff lived within two miles east of the defendant, and of course that they might as well have been intended as the plaintiff.
, But the plaintiff further avers the defendant, by means of the said words, insinuated and meant to be understood as charging him, the plaintiff, with being a thief and with having stolen his, the said defendant’s, hams, beef and flour, &c. and that the defendant was so understood by the persons in whose hearing the words were spoken. Whether such was the intention of the defendant was a question of fact to be determined by the jury upon the evidence presented to them upon the trial. (Van Vechten v. Hopkins, 5 Johns. R. 211.) Averments are the subject of proof, though inuendoes are not. (idem, and Starkie’s Slander, 304, ch. 20, and cases there cited.)
I think there was evidence, enough to go to the jury in support of the averment that the plaintiff was the person whom the defendant intended to charge, independently of
If the jury upon this evidence had found a verdict for the plaintiff, I think we should not have set it aside and granted a new tidal. A defendant who will couch his slanders in ambiguous terms, in the hope of blasting the reputation of his neighbour, without incurring any legal responsibility, cannot claim an indulgent construction of his words either from the court or the jury. The evidence, I think would justify the conclusion that the plaintiff was the person alluded to. The judge erred therefore in nonsuiting the plaintiff.
The testimony of Bigelow and Foley as to whom they understood the defendant to mean by the infamous thief, &c. was properly excluded. Mr. Starkie, in his Treatise on Evidence. (2d vol. 861,) seems to consider this species of evidence as admissible. He says the colloquium and other averments, which connect the words or libel with the plaintiff or subject, must next be proved. This is usually done, he remarks, by the testimony of one or more witnesses, who know the parties and the circumstances, and who state their opinion and judgment as to the intention of the defendant to apply Ms words or libel to the party or circumstances as alleged. It seems to be sufficient, he continues, if the witness in the first
In Van Vechten v. Hopkins, (5 Johns. R. 211,) the plaintiff offered a witness to prove that from reading the libel he applied it to the plaintiff, and understood him to be the person intended. This evidence was overruled by Judge Spencer, who tried the cause, on the ground that it was the province of the court to determine, from a perusal of the libel, whether it was intended to apply to the plaintiff or not. Upon a motion for a new trial, it was held that whether the libel was published of and concerning the plaintiff was a question of fact which belonged to the jury and not to the court to decide. But it was also held that the evidence was properly excluded, and the court remark, that the intention of the defendant is not the subject of proof in the way here attempted. It is the mere opinion of the witness, which cannot and ought not to have any influence upon the verdict; and the judge who delivered the opinion of the court observed, that this kind of evidence had, he believed, frequently though he thought erroneously been admitted at nisi pirus. It is true that in that case there was no express averment that the plaintiff was the person to whom the defendant intended to apply the charge; but it is obvious that if there had been, it would not have altered or affected the views of the court to which I
Nonsuit set aside and new trial granted.