5 Binn. 340 | Pa. | 1812
This is an action for two libels published by the defendant in a newspaper called, “ The Democratic Press,” of which he is the editor and proprietor, on the 9th and 16th of September 1808. Motions have been made by the defendant for a new trial and in arrest of judgment. There were five reasons for a new trial filed, but as some of them were abandoned, I shall consider those only which were insisted on. These may- be reduced to three heads. 1st, That one of the jurors declared, before he was impannelled, that he had made up his mind against the defendant. 2d, That the judge who tried the cause erred in law, in permitting the newspapers to be read to the jury. 3d, That he erred in suffering the jury to form a judgment by comparing one paper with another.
1. There is no occasion to consider the law on the first point, because I do not think the defendant has established the fact. It was sworn indeed by one witness, Jonathan Carson, that after George Summers had been summoned as a talesman, he heard him say, that “ it was of no use to take “ him, as he had made up his mind against Binns; that Binns “ had published a libel against religion, and he would give “ his verdict against any man who published a libel against “ religion, and that he would inform the Court of his opi- “ nion, if they went to impannel him on the jury.” In corroboration of Carson’s evidence, it was proved by Lambert Smith, that during the trial he heard Carson say, substantially, the same thing that he has sworn, at Rubicam’s tavern, in the presence of ten or a dozen- people. On the other hand Summers swore that he never said any such thing, and that in fact so far from having made up his mind, he did not know what the cause of action was until after he was impannelled; and he stands corroborated by this circumstance, that he did not say any thing to the Court of his having formed
2. In order to understand the second and third points, it will be necessary to take a view of the evidence, [which the Chief Justice accordingly stated.] If the judge had been satisfied that the papers were not identified, he might have withheld them from the jury; but considering it as a doubtful matter, I cannot say that he was wrong in submitting it to the jury. It was possible that the plaintiff might have inserted a paper of his own, in the file which he found upstairs; but enough had been shown to authorise the Court to submit the matter to the jury. It is like the common case of a deed which is not immediately in issue, being offered in evidence. If the Court think it not sufficiently proved, they may refuse to suffer it to be read. But if the evidence in favour of it has any considerable weight, they may and generally do leave it to the jury.
3. Besides the paper of the 16th of September found in Donaldson's house, there was another of the same date given in evidence, which was proved to have been purchased from the defendant’s shop. This being identified beyond all
The motion in arrest of judgment remains to be considered. It has been contended for the defendant that the matter complained of is not a libel. If it be not, it seems to me, that it is no easy matter to compose a libel. Let us see what it is that the defendant has inserted in his paper. He charges the plaintiff, “ with having been deprived of a participation “ of the chief ordinance of the church to which he belongs, “ and that too, by reason of his infamous and groundless as- “ sertions.” The distinction between slander by words, and by printing or writing, is so well known, that it is unnecessary to dwell on it. Suffice it to say, that any malicious printed slander, which tends to expose a man to ridicule, contempt, hatred or degradation of character, is a libel. But say the counsel for the defendant, no man’s character suffers in Pennsylvania by an exclusion from the rites of the church
Upon the whole my opinion is against a new trial, and against arresting the judgment.
Five reasons have been alledged for this Court’s awarding a new trial; two of them only have been insisted upon by the defendant’s counsel during the argument.
The first ground taken, that George Summers, one of the jurors, had prejudged the cause in favour of the plaintiff before he came to the book to be sworn, does not appear to me to be founded in fact. He has positively denied it upon his oath, and has further sworn that he was wholly ignorant of the cause of action, until it was opened by the plaintiff’s
The second reason urged in support of a new trial, is that there was a chasm in the testimony adduced by the plaintiff, to prove the defendant’s publication of the Democratic Press of the 9th off September 1808, it being one of the papers charged in the declaration. It is contended that the identity of that paper shown in evidence to the jury was not established, and therefore the same ought not to have been read to them. I readily admit, that in the trial of every suit the probata must correspond with the allegata, and that the judge usually decides on the conformity of' the evidence offered, to the case before him. Should he be of opinion that the testimony proposed is impertinent to the issue then on trial, or does not establish the fact for which it is adduced, he will at once overrule it. But should it be dubious and equivocal in his judgment, if it tends to prove the fact relied on, he may and frequently does submit it to the jury for
It has been said, but not insisted upon, that the damages found are excessive. The case certainly is not of that kind, wherein the damages assessed merit that denomination.
As to the matters urged in arrest of judgment, that the publications charged are not libellous, I have no difficulty whatever. Any publication which tends to bring a man into disrepute, ridicule or contempt, is a libel in a legal sense. The distinction between words written or printed' and published, and the same words spoken, is clearly settled. Litera scripta manet. Charging another with being “ deprived of a “ participation in the chief ordinance of the church to which “ he belonged, by reason of his infamous groundless assertions,” — calling him “ a. public pest,” — and “distinctly “ and decidedly affirming, that he had absented himself from
New trial refused, and judgment for plaintiff.