194 Mich. 107 | Mich. | 1916
(after stating the facts).
“Gentlemen of the jury, in respect to those three complaints for the prosecutions under the liquor law, the_ three complaints that Mr. Kelley made and to which the defendant pleaded guilty, as to those complaints I hold that the fact that Mr. Kelley prosecuted those three suits is not to be considered as evidence of malice on Mr. Kelley’s part, and it won’t be necessary to refer to it again, and counsel will be governed by what I say.”
Later the court again, in substance and effect, restated this ruling.
It has been repeatedly held that the record on appeal to this court is the matter duly certified, and that’ it cannot be amended by stipulation of counsel. This rule is adhered to. But here the complaint which appellant makes to this court is fairly answered by the admission of his counsel in the stipulation filed in this court. He admits that the jury was instructed as he contends they should have been instructed, not, it is true, in the course of the general charge, but before the general charge was delivered and in the course of an argument in which the effect of the complaints as evidence of malice was being presented by counsel to the jury.
The admission of counsel may be considered as answering the argument he makes and as accounting for the refusal, or failure, of the court to charge the jury as requested — to repeat an instruction already given and at a time when it was likely to be best understood by the jury. This does not, however, precisely answer the objection that the complaint for arson, made by defendant, was in the case and had
It will not be assumed because the wife of plaintiff two years before the trial regarded her husband as a drunkard and a bad man generally in his domestic relations that his feelings might not be affected by the untruthful charge that he was guilty of arson. The court offered to counsel permission to introduce evidence to meet that of the witness — to show that his feelings were not affected, as she had testified they were — and to show plaintiff’s general-reputation and
“Malice, in a legal sense, means a wrongful act done intentionally, and without just cause or excuse.” Zimmerman v. Whiteley, 134 Mich. 39, 45 (95 N. W. 989, 991).
See, also, Bell v. Fernald, 71 Mich. 267 (38 N. W. 910); Highway Com’rs of Eagle Township v. Ely, 54 Mich. 173 (19 N. W. 940); Long v. Tribune Printing Co., 107 Mich. 207 (65 N. W. 108).
The Century Dictionary defines malice as:
“The evil intention, either actual or implied, with - which one deliberately and without justification or excuse does a wrongful act which is injurious to others.”
In the case at bar, the court restricted the jury to the consideration of the proposition whether defend- . ant uttered the words in good faith with good reason to believe them to be true at the time he uttered them. It was not in form a definition, but was the statement of the test to be applied by the jury, and it was a statement of a fair test in the particular case.
“did not take away the right of the jury to consider whether an unsustained notice of justification might not be evidence tending to show malice, when taken in connection with the other facts established.” Jastrzembski v. Marxhausen, supra.
In the instant case the court advised the jury that if they found defendant guilty of slander they must award plaintiff his actual damages, that malice of defendant might increase, augment, the actual damages recoverable, that if when he filed the notice of justification defendant had no reasonable hope or expectation of proving the truth of it they might consider that as evidence tending to show malice. Clearly this was not telling the jury that they might consider the unsustained notice as evidence of malice. And what reasonable excuse can be given for thus reiterating a charge of crime with no reasonable hope or expectation of proving the truth of the charge? Mere belief no more excuses the reiteration than it does the original uttering of the slanderous words.
The judgment will be reversed, unless plaintiff elects to remit $100, with costs to appellant. The said sum being remitted, it will be affirmed, without costs to either party.