12 Wend. 12 | N.Y. Sup. Ct. | 1834
By the Court,
The plaintiff, on the trial, abandoned in open court all the counts in his declaration except the third, and restricted his claim to damages to a distinct portion of the libellous matter alleged in that count. It contained the essence of the whole charge, and severely arraigned the conduct and character of the plaintiff. That the plaintiff had the right thus to limit the subject matter in litigation to a specific point, is beyond question, and indeed was not contested on the argument. 7 Johns. R. 120.
The charge relied on to sustain the action was, in substance, that while the plaintiff was acting or pretending to act upon a committee appointed by the people of Monroe county to investigate the masonic outrage, he furnished money to enable one of the offenders to escape from justice ; and that he had solemnly and deliberately sworn that he disapproved of the whole outrage, and had had no agency in it before or after its commission.
The counsel for the defendant offered to read in evidence a portion of a stipulation in writing between the parties as to admissions to be made on the trial, from which the above publication was read, which was objected to as irrelevant, embracing other publications between the parties on other and different occasions. All the matters admitted by the stipulation were in terms subject to legal exceptions as to their ad
It is settled in this court, in the case of Beardsley v. Maynard, 4 Wendell, 336, and in the court for the correction of errors, 7 id. 560, S. C., that the previous publications of a
There is but one other ground upon which its admissibility can be claimed, that 1 can conceive of, or that has the sanction of any authority of which I am aware, and that is when the previous publication is material to afford explanation, and a right understanding of the purport, meaning and object of the article charged as libellous. Whether such will be its operation and effect, must from necessity always be a question for the court, to be determined upon an examination of the several articles. When admitted, their weight and influence, explanatory of the alleged libel, belong to the jury, under a proper direction, and ffe effect will be as various as the na-’ ture and character of the different publications. In some cases, articles on their face clearly calumnious may, by reference to the previous publications and which are explanatory of them, become harmless or justifiable ; in others, the tone of crimination and vindictiveness will be softened and subdued,
The libellous charge complained of in this case imputes to the plaintiff, under very aggravating circumstances, unqualifi-edly the crime of being an accessary after the fact to the offence of kidnapping a citizen, and the guilt of perjury in endeavoring to exculpate himself. Now, in what way the previous publications of the plaintiff would tend to explain or mitigate the harshness and severity of this charge, was not attempted to be shown on the argument; and, after an attentive examination of them, lam unable to discover how they can have such effect. The article secondly offered in evidence by the defendant is but the explanation of certain rumors put forth by the defendant, and impeaches nobody. The article first offered retorts crimination upon the character of the defendant, which has no relation to the charge in question, and reiterates the truth of the plaintiff’s former explanations, with a denial of charges made or repeated intermediate by the defendant in his paper. There is nothing in either of these articles, so connected with the libel, that its production could afford elucidation, or explanation tending to soften its asperity or mitigate its purpose, unless the repeated and earnest denial of calumnious charges can have that effect. The most that can be said in favour of receiving them in evidence is, that the defendant may be enabled to contend the article charged as a libel was but the return of crimination in mitigation of damages, which we, have seen, upon well settled principles is not admissible.
The above view also disposes of the objection that the court refused to admit in evidence the whole of the article in question, with one of the publications of the defendant annexed to it. The fact that it was fixed at the head of the article in the
We will not stop to inquire whether the record of the conviction of certain persons for a conspiracy to abduct Morgan was properly rejected or not, as the fact of the existence of such 1 conspiracy was fully admitted by the stipulation which had béen read in evidence. This was all that could be material for the defendant, to enable him to prove that the plaintiff was a participator in that outrage before or after the fact.
The judge was right in rejecting the evidence offered to justify portions of the article other than those relied on, and to which the claim for damages was expressly restricted. If the plaintiff could thus abandon a part of the claim, and narrow the ground of litigation to a definite charge, (and the right to do so has not been denied,) it follows that the case is ‘not tp be involved, at the option of the defendant, with a consideration of the matters thus waived. They are no part of the issue. The whole article may be read by either party, for the purpose of ascertaining the force and effect of the portion for which damages are claimed ; and if the plaintiff has waiv-1 ed the more grave and serious charges against his character, and relied for damages upon charges less injurious, this may constitute a legitimate topic of remark, by the counsel for the defendant, to the jury, and in which will usually be found, by the result of the verdict, a full equivalent for any advantage the plaintiff may be supposed to have gained. 21 Com. Law R. 393.
The testimony that the $100 advanced by the plaintiff and received by the witness, in Albany, was paid to one of the kidnappers of Morgan to enable him to escape from justice, was also properly rejected. There is no principle or reason which will hold the plaintiff responsible for the appropriation of money to an unlawful purpose, by a third pérson over whom he had -no control, and without his knowledge or assent.
New trial denied.