30 Ill. 373 | Ill. | 1863
It was insisted, upon the argument, that the Circuit Court erred in overruling the motion to suppress the depositions of Weltner and William Dunaway. After a careful examination of the record, we are unable to find that any exception was noted, or bill of exceptions signed, showing any objection to that decision. But it is insisted, that on the trial, at a subsequent term, when the depositions were offered to be read in evidence, an objection was taken, and is preserved in the record. This does appear from the bill of exceptions, but no specific grounds of objection seem to have been taken. It was only a general objection, and could only be applied to the substance, and not the form of the depositions. If they were relevant to the issue, they were properly admissible. Objections to form cannot be taken on the trial, and the objections urged against these depositions were only formal, and do not go to their materiality. This error is not well assigned.
It is also insisted, that the court erred in not permitting the witness, Schooley, to testify that appellant, before he made the publication, had been informed by Jesse Dunaway, that all the charges were true. Jesse Dunaway had already testified that he gave the information upon which the appellant made the publication. He had also already testified, that the facts were true, except as it related to depositing the thousand dollars with Mrs. Armstrong, of which he knew nothing. It is true that Tate testified, that Jesse Dunaway said to him, after the article was published, that the charges were not true; but there is no evidence that he denied giving the information to appellant. It would, therefore, seem to be a matter of no consequence, whether Schooley testified to that fact, as it does not seem to have been controverted, that Dun-away did give the information.
Schooley testified, that he informed appellant about the deposit of the thousand dollars. The publications made by appellee, in reference to appellant, were also- in evidence, and subject to the consideration of the jury. Appellant, therefore, seems to have had the benefit of all the mitigating circumstances, and unless the court misdirected the jury, he must have received its full benefit on the trial. As all this evidence was received without objection, no question can arise, whether it was admissible under the pleadings in the case.
It is again insisted, that the court erred in refusing to give appellant’s third, fourth, fifth and seventh instructions. The third requested the court to inform the jury, that in estimating the amount of damages, if the plea of justification was not sustained, they should consider whether the publication was made by appellant, in the honest belief that it was true, and in estimating the damages, consider the articles published by appellee prior to that made by appellant, and upon which suit was brought. No reason is perceived why this instruction was not given, although it is contended, that under a plea of justification, nothing can be shown in mitigation.
The defendant, by pleading the general issue, in libel and slander, virtually admits that the plaintiff is innocent of the charge upon which suit is brought. But if, on the trial, it appears that defendant did publish the slanderous matter, he may, under that issue, show any circumstance .in mitigation, which tends to disprove malice, but does not tend to prove the truth of the charge. The publications made by appellee against appellant, prior to the publication sued upon, did not tend to prove the truth of the charge, and were, therefore, admissible to mitigate damages under the general issue. These publications, made by appellee, may have shown that they were highly calculated to provoke appellant, and that his act was not of such a wanton, reckless and malicious character as to require severe punishment.
The question still remains undetermined, whether a defendant may, after he has pleaded the truth of the charge, in justification of the publication, and after again repeating the charges and spreading it on the record, on failing to prove its truth, give evidence in mitigation. It seems to be the settled practice in Great Britain, followed by some of the courts in this country, that he cannot. In other courts, a different rule has obtained. It appears that the practice is not very well settled. But this court, in the case of Cummerford v. McAvoy, 15 Ill. 311, in which both pleas were filed, held, that the jury might consider the quo animo with which the charge was made. That the intention of the party in publishing the slander is the controlling consideration with the jury. It cannot be held that the publication of slanderous matter without malice, is to be punished with the same damages as if it were wantonly and maliciously done.
Again, in the case of Sloan v. Petrie, 15 Ill. 425, it was said, that a class of cases hold, that where the justification is not fully established, the circumstances proved may be considered in mitigating damages. Numerous authorities are referred to in that case, in'support of the'doctrine. The court also say, in case a plea of justification is filed, it is the province of the jury to determine whether the circumstances render it an aggravation. It would seem to be apparent, that the converse of that rule should also obtain, if the plea was filed in good faith, and evidence was introduced honestly for the purpose of proving the plea. In such a case the evidence should be considered in mitigation of damages.
If the jury believed, from all the circumstances in the case, that appellant relied upon and was satisfied of the truth of the statements made to him by Jesse Dunaway, and that he was not actuated solely by malignity, they would have been justified in giving less damages than if the publication had been wantonly made. If, on the contrary, he knew that the witness was unworthy of belief, and only resorted to his evidence to further injure and blacken the character of appellee, it would aggravate the damages instead of mitigating the offense. These are properly questions for the consideration of the jury, and' were presented by this instruction, which should have been given. In the view we have taken of the case, the fourth should also have been given. But nothing in the record is perceived which required the giving of the fifth.
The seventh instruction was properly refused. The bur-then of proving that appellee had appropriated the money for which the cattle were sold, had been assumed by appellant. Nor did it devolve upon appellee to show what disposition he had made of the money, when appellant proved that it came to his hands. The law does not presume that because money has been entrusted to an individual, that he has embezzled or appropriated it to his own use. Appellant has asserted in his plea that appellee had appropriated the money, and he must establish its truth or fail in his defense. It did not devolve upon appellee to disprove the charge.
Although some of appellee’s instructions are not drawn with accurate precision, they were not, we think, calculated to mislead the jury, especially when all are considered together, as they no doubt were. No other error is perceived in this record. But for refusing to give the third and fourth of the appellant’s instructions, the judgment of the Circuit Court must be reversed, and the cause remanded.
Judgment reversed.
