Kennedy v. Gifford

19 Wend. 296 | N.Y. Sup. Ct. | 1838

By the Court,

Cowen, J.

We need go no farther than Goodrich v. Woolcott, 3 Cowen, '231; 5 id. 714, S. C. on error, which was extremely well considered, to see that the declaration in the case at bar is good, and, of course, that the words proved, which do not materially vary from the declaration, are slanderous. It was held in the case cited, that a declaration containing words which, in common understanding, would import the crime against nature, preceding arid following them with an averment of the intent to charge the plaintiff with a crime against nature, and that they were so understood, was good. The words there charged were more equivocal than those made use of in this case. “ The inquiry is not,” says Mr. Justice Sutherland, “ whether the words could have been understood in any other way; but whether that is the construction which common persons would naturally put upon them.” He ■adds, “ if the words were of doubtful signification, it was the province of the jury to determine, in what sense they were used.” It is not because the words may have a meaning different from what they import, or because they are of doubtful meaning, that the declaration must show specially such extrinsic facts as give them point; but when they are such as cannot, of themselves, be slanderous. At least this is so, on a motion in arrest of judgment, or on error. A simple allegation of false swearing is insufficient to convey the charge of perjury. There is nothing in the words to connect with them the idea of a judicial oath more than any other; therefore you must aver that the oath was taken, in a judicial proceeding, and show that the conversation had allusion to it. The class of insufficient words, and how they are to be dealt with in declaring, was much considered in the late case of Goldstein v. Foss, finally decided by the exchequer chamber, reported in 1 Moore & Payne, 402, and several other books. They must be made significant by a statement of the proper extrinsic facts, a colloquium concerning those facts, and an innuendo connecting them with both. Per Bronson, J., in Andrews v. Woodmansee, 15 Wendell, 224. A fortiori, if the words have a cabalistical or local meaning which is slanderous, being in their ordinary sense decidedly innocent. On the other hand, if the words charged be capable in themselves of a slanderous sense, thére is no need of any averment beyond the common one of an intent to charge the crime, especially after verdict. Stark, on Slander, 81, ed. of 1826. I know that this is put more strongly in cases of. demurrer, where it is said the words, if they do not necessarily import a slander, or allude to the proper person, &c. must be brought up to that import or allusion by special averments. Nelson, C. J., in Miller v. Maxwell, 16 Wendell, 9, on the authority of Alexander, L. C. B., in Hall v. Blandy, 1 Younge & Jerv. 480, 489. But where there has been a verdict, and the motion comes in arrest, the case of Goodrich v. Woolcott, warrants the rule as laid down in Starkie. The averment in that case, at the end of the declaration, that the words meant and were understood to convey the charge of felony, are no more than a common innuendo. The words were capable either of a guilty or innocent meaning.

In all this I am supposing the words in the case at bar t0 be weaker than they really are; for I would not be understood as admitting that they are doubtful in their import. They asserted a consequence which the hearers knew must have been intended to imply a felony, even supposing such hearers to have been perfectly acquainted with that law of nature which forbids the confusion of the species. The speaker either did not understand that law herself, and therefore charged a crime upon the plaintiff in unphilosophical language, or she did understand it, and preferred to insinuate the charge through a figure of speech. Gorham v. Ives, 2 Wendell, 534. To say that a murder has been committed upon A., and that B. was the father of the crime, would, taken literally, be impossible; yet could any one doubt that B. was intended as the murderer ? or at least as an accessory ?

But the'' defendant herself did not pretend that either hearer'or speaker knew that the effect spoken of could not follow. Her counsel offered to prove by learned men that it could not, and' the plaintiff’s counsel admitted it. But the proof was irrelevant; it stopped short of showing that the hearers possessed the same degree of knowledge. It was the sense in which they understood the words upon which the jury were to pronounce. Demarest v. Haring, 6 Cowen, 76. None of them were inquired of. Had they been, I have no doubt how they would have answered. The case is different from a charge of an act in such words that the law of the land will not make it an offence ; for every person is presumed to know that law.

The evidence offered and received, of the defendant’s conversation with Sabrah Cook, which took place after the action was brought, is a striking illustration of the propriety with which such evidence has been allowed by the cases, to prove the quo animo, so long as the subsequent conversations were confined to the subject of the original defamation. 2 Phil. Ev. 246, 7lh ed. 2 Sound. PL. & Ev. 808, 9, marginal paging, or 381, 2, of Am. ed. of 1829. Savage, C. J., in Inman v, Foster, 8 Wendell, 609. It is difficult to conceive of: words more forcibly indicative of malice, of such withering influence upon the character of the plaintiff, or more harrowing to the feelings of a female whose moral sense was not totally depraved.

It is perfectly well settled that neither particular reports nor public reputation of the truth of the slander, nor of kindred charges against the plaintiff, are admissible. Inman v. Foster, 8 Wendell, 608, and the cases there cited.

Both the motion in arrest and for a new trial must be denied.