42 Barb. 326 | N.Y. Sup. Ct. | 1864
By the Court,
I was inclined, upon my first impression of this case, to differ with the learned judge who tried the cause, in his ruling excluding the offered evidence, and in his charge to the jury. But on further reflection, I think he was right. Under the authority of Gidney v. Blake, (11 John. 54,) followed and approved in Ryckman v. Delavan, (25 Wend. 203,) the action was clearly maintainable by the plaintiff. The words were actionable per se, and the plaintiff, as one of the parties included in the language, used by the defendant, could bring his separate action for the slander thus uttered.
On the trial, the defendant, while admitting that he spoke
The case of Phillips v. Barber, (7 Wend. 439,) is in principle, entirely applicable to this case. The defendant in that case uttered the words “you have stolen my wood,” in a public meeting. All the witnesses that were sworn ifpon the trial, testified that they understood the defendant to allude to a transaction, not felonious in its character; and the
It is not enough that the party swears that he made the explanation; it must be made to appear that the explanation was heard and understood by the hearers, since only in that event would, the words be rendered harmless in respect to the plaintiff. Nelson, J. adds that it is not necessary that the explanation should be made by the defendant at the time of speaking the words, if all the hearers .are in possession of the facts alluded to when the words were spoken; but the words in that case being uttered in a public meeting, although the witnesses understood the transaction, others were present, as to whom it did not appear that they knew the circumstances out of which the charge arose. In this case there was no offer to show that the witnesses who heard the slanderous words knew, or had ever heard, that the other boys of the plaintiff's father had stolen the defendant’s corn; and consequently, without this knowledge, and in the absence of any accompanying explanation which they heard and understood, the words necessarily imputed a charge of felony, in which the plaintiff was included. This being the true principle, it was properly applied in this case, and the judge rightfully excluded the evidence offered by the defendant, that the two
In commenting upon the testimony of the defendant in respect to the point whether he did in fact make the explanation he swore he did, the judge added that there was “an oddity and want of symmetry in the language sworn to by the defendant, which the jury might take into consideration in determining whether the defendant did add said words, or not.” The defendant excepted to this part of the charge, and insists that this was erroneous, being an attempt to dictate to the jury upon a question of fact. If this were so, it might, perhaps, be a question how far in that direction it is allowable for a judge, in his charge to a jury upon matters of fact, to go. But I do not understand this to be a direction to the jury to find any fact whatever. It was the utterance of an opinion, that the form of expression which the defendant swore he employed was odd and unsymmetrical to the mind of the judge, and that this might be considered by the júry in aiding them to determine another fact. Now, it is surely allowable in a judge, in commenting upon testimony, to characterize the manner, deportment and mode of testifying exhibited by witnesses on the stand; and this has never been deemed a ground of exception. If the judge has a strong opinion upon the character of evidence and the witnesses who avouch it, I suppose he can express it, although in practice, as1 a general rule, I think the custom is one “more honored in the breach than the observance.” When he goes so far as to dictate to the jury how they shall find, and what verdict they should render upon a naked issue of fact, he transcends the proper limits of a charge, and trenches upon the province of the jury. The true rule I apprehend to be, that the expression of an opinion by a judge, as to the character or effect of evidence, leaving it to the jury notwithstanding to decide the question submitted to them, furnishes no valid ground of exception. See People v. Quin, (1 Park. Cr. R. 340,) where the distinction between this and
I am of opinion that the order of the special term, denying the motion for a new trial, should be affirmed.
Morgan, Bacon and Foster, Justices.]
«) See S. 0. post, 655.