Rundell v. Butler, 10 Wend. 119

Rundell v. Butler

10 Wend. 119 | N.Y. Sup. Ct. | 1833

By the Court,

Savage Ch. J.

The publication of the libel was proved, and I am inclined to think the verdict was against the weight of evidence ; but I do not deem it necessary to analyze the testimony, as it is not of course that a new trial should be granted in this case, although the verdict be against the weight of testimony. In Jarvis v. Hathaway, 3 Johns. R. 180,3, it was held by this court, that in penal actions and actions for libel and defamation, a new trial will not be granted *121to the plaintiff, unless some rule of law has been violated in the admission or rejection of testimony, or in expounding the law to the jury, or unless there has been tampering with the jury. This rule was reiterated in Hurtin v. Hopkins, 9 Johns R. 37, where it is said that the cases where it has been applied were not very aggravated in their nature; and it was again recognized in the case Ex parte Bailey, 2 Cowen. 483, where it is stated perhaps rather too strongly, that in such cases a new trial is never granted. In this case now under consideration the charge is of an aggravated nature, and if it were fully sustained, and there were no mitigating circumstances, the verdict for the defendant might be considered as this court said in Hurtin v. Hopkins, evidence of prejudice, partiality or corruption.

The evidence of reports of the plaintiff’s guilt could not have been received without the plaintiff’s consent. The point had been expressly adjudicated by this court in Matson v. Buck, 5 Cowen, 499. The parties, however, chose to make a law of their own for this particular case, and' by it they must abide. The defendant offered to prove in mitigation of damages, that it was the general report that the facts were as stated in the libel; this evidence was objected to, but before the court had decided the question the plaintiff’s counsel waived the objection to the testimony, and challenged the defendant to prove such reports, and also the truth of the facts. This was perhaps somewhat qualified before any testimony on the point was in fact given. When the defendant’s counsel proposed to prove the general report that Jehu’s death was caused by the severe treatment of his brothers, it was objected that such evidence did not prove a deliberate contrivance to murder, which was charged in the libel, but the judge very properly remarked that he would not exclude the testimony, as the intent was proper for the jury to consider, and he might have added that the fact of combination might also be proved by circumstances. Assuming, therefore, what was conceded by the plaintiff’s counsel, that reports were admissible, charging the plaintiff with the crime imputed in the libel, the evidence offered was proper. If a defence of this kind was admissible in mitigation, any reports of the same character were proper and would mitigate *122in proportion as they approached a justification. The reports proved and the facts stated by the witnesses would not sustain a charge of murder, but they were such as would only have warranted a verdict for nominal damages. There was no error of the judge, therefore, in the admission of testimony under the law of the case as agreed by the parties ; nor was there any error in rejecting evidence of the real cause of the death of Jehu, for of that cause the defendant was not to be supposed to know any thing, except what he had learnt from report; and if the reports and the facts proved were of the character to justify the defendant or mitigate his malice, the fact offered to be proved by the physicians, ought not to enhance the damages, unless it had also been offered to be proved that the defendant knew that Jehu’s death was not caused by the inhuman treatment of the plaintiff The cause was fairly submitted to the jury, and the only error they committed, was returning a verdict for the defendant, instead of finding a verdict for the plaintiff, with nominal damages. A new trial ought not to be granted under such circumstances.

New trial denied.