73 F. 440 | 2d Cir. | 1896
The facts with respect to the alleged libel which is the subject: of this suit — the publication itself, its actionable character, the law in regard to evidence of the plaintiffs social standing, and in regard to the subjects of express malice and punitory damages — -were fully considered upon the first writ of error, and are stated in the opinion of tins court. 11 O. C. A. 155, 63 Fed. 238. The questions which arise upon the present writ of error, which are both new and important, are the alleged errors in overruling- a challenge to the favor, and in admitting the challenged person to become a juror, and in the admission of evidence in regard to the falsity of Gosdorfer’s original dispatch.
Alonzo B. Jones, an architect, and apparently an intelligent and cautious person, who was called as a juror, was examined by the counsel for the defendant and by the judge. In reply to the defendant’s counsel, he said, among other things, that he had no feeling or prejudice against the World, and no prejudice against the newspapers of the city of Yew York; that he thought the papers of the city published articles which they ought not to publish; that no publication in the World against any of his friends had been made; that the first impression would be against newspapers on a charge of libel; and that it was a feeding that would require some little effort for him to free himself from. To the judge he said that he had no doubt at all in regard to his ability to render an impartial verdict in any case against a newspaper, or of his ability to be impartial in a case against the World; that lie would give the defendant corporation the benefit of the rules of law and of the evidence which was in its favor. The defendant’s counsel then asked the following-question: “Tf the ease involved the precise point suggested by his
Challenges in the federal courts to the favor are tried by the court (Rev. St. § 819), and an alleged error in the decision which is duly excepted to is the subject of review by the appellate court. But it must be remembered that the question before the trial judge, although one of mixed law and fact, is, in the main, a question of fact, and that, while he may be sometimes wrongly influenced by a desire to expedite the trial, or by impatience of delays, yet, if his mind is undisturbed, the impression which the juror makes of his intelligence, fairness, and evenness of mind, from a personal inspection of him, and the belief, in regard to his probable character, which is created by his appearance under examination, his bearing and willingness to disclose the nature and extent of his preconceived opinions, are valuable, and have deserved weight before an appellate court, and therefore the finding of fact by the trial court will not be set aside except for manifest error. Thus Chief Justice Waite, in Reynolds v. U. S., 98 U. S. 145, says, in regard to the finding upon a challenge for cause in a criminal case, the alleged cause being a preconceived opinion, as follows:
“It is .clear, therefore, that, upon the trial of the issue of fact raised by a challenge for such cause, the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law' necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new' trial because the verdict is against the evidénce. It must be made clearly to appear that, upon the evidence, the court ought to have found the .•juror had formed such an opinion that he could not in law be deemed impartial. The ease must be one in which it is manifest the law left nothing to the ‘conscience or discretion’ of the court.”
The tendency of the modem decisions by the New York court of appeals is also to regard the question arising under a challenge to the favor as one of fact in the majority of cases, and dependent upon the circumstances of the particular case, and therefore to give proper weight to the opinion of the trial judge, who had an opportunity to see the juror. Thomas v. People, 67 N. Y. 218; Young v. Johnson, 123 N. Y. 226, 25 N. E. 363.
In this case, if the answer of Jones to the last question which was put by the defendant’s counsel was the only, or was the main, answer in the examination, the challenge should have been sustained. He had said, abundantly, that he had no feeling or prejudice against the World, but that his first impression would be against newspapers who were charged with libel. In reply to the court, and to a certain
The defendant urges Jones’ prejudice against newspapers as an objection to his competency, upon the ground that a juror who has a prejudice against a lawful business is incompetent. Assuming that the proposition is true, Jones’ impression in regard to the methods of conducting newspapers was not of that character which could be considered a disqualifying prejudice.
The next exception relates to the admission of testimony in regard to the falsity of Grosdorfer's original dispatch. The case really turned upon (he question of damages; the effort of the defendant being to reduce them to a nominal sum, and to that end to show that there was no wantonmvss or carelessness, but that it exercised a high degree of care in the selection of correspondents, and in the reliance upon them for truthful dispatches. It offered Gosdorfer as a witness, who proved that he wrote and sent the original dispatch, and also offered ihe dispatch itself. Upon the cross-examination of Gosdorfer, the plaintiff endeavored to show that he had, without investigation, incorrectly changed the language of the statement which he originally saw in regal'd to Evan Kmith, and offered further evidence to show the nntruthfulness of the dispatch as sent, and that investigation would have shown its incorrectness. This testimony was admissible for the purpose for which it was offered, to attempt to refute the theory of the defendant of adequate care in (he collection and publication of news, by an examination oí the truthfulness
The general subject of testimony in regard to the social status of a libeled plaintiff was so fully examined in the former opinion that the discussion needs no repetition. The amount of testimony of that character upon this trial was kept within proper hounds by the trial judge. After the plaintiff had stated the character and extent of the social and business positions which he occupied, a single witness replied most briefly to a very general inquiry in regard to the plaintiff’s business and social standing.
The judgment of the circuit court is affirmed, with costs.