Porter v. Botkins

The opinion of the court was delivered, January 4th 1869, by Williams, J. Hone of the assignments of error in this case are properly made, and we might, therefore, disregard them, and, without considering the questions intended to be raised, affirm the judgment. It ought to be understood that, in vindication of our rules, we may be compelled to treat such defective assignments as nullities. But passing them by in the present case, we are of the opinion that the offers of evidence were inadmissible under the pleadings. It is well settled, if anything can be by repeated decisions of this court, that in an action for slander, evidence of the truth of the words is not admissible under the general issue, in mitigation of damages — the only safe rule on the subject, as declared in Smith v. Smith, 3 Wright 442, is that if the proposed testimony tend to prove the-tmtLMLthe charge it isjLQiuaádence. Subordínatelo this rule, the defendant may prove, in mitigation of damages, the circumstances which induced him erroneously to make the charge. But the circumstances must not be of such a character as tend to^pmvaJts — truth. Facts and circumstances can only be shown in\ mitigation when they disprove malice and do not tend to prove the charge, or form a link in the chain of evidence to prove a justification: Petrie v. Rose, 3 W. & S. 366; Smith v. Smith, 3 Wright 442. Testing' the offers of evidence in this case by these rules, it seems to us that they were properly rejected. The circumstances as recited therein, under which Jacob Howard, a childless old man, was found dead in his bed, without any previous sickness, shortly after he had made his will devising his property to the plaintiff — the equally sudden death of his widow, while living in the plaintiff’s family, and whose maintenance was charged on the estate devised — the motive which the plaintiff had for desiring their death, and the other facts stated in the offers certainly tended [487] to prove, though they may have come short of establishing the truth of the charge, that the plaintiff was guilty of their murder by poison, as charged by the defendant. All these facts and circumstances would have been admissible under a plea of justification, and would have formed more than one link in the chain of evidence to sustain the plea. And if so, they were not admissible under the plea of not guilty in mitigation of damages. Judgment affirmed.