M'Corkle v. Binns

Tilghman C. J. This is an action for two libels published by the defendant in a newspaper called, “ The Democratic Press,” of which he is the editor and proprietor, on the 9th and 16th of September 1808. Motions have been made by the defendant for a new trial and in arrest of judgment. There were five reasons for a new trial filed, but as some of them were abandoned, I shall consider those only which were insisted on. These may- be reduced to three heads. 1st, That one of the jurors declared, before he was impannelled, that he had made up his mind against the defendant. 2d, That the judge who tried the cause erred in law, in permitting the newspapers to be read to the jury. 3d, That he erred in suffering the jury to form a judgment by comparing one paper with another. 1. There is no occasion to consider the law on the first point, because I do not think the defendant has established the fact. It was sworn indeed by one witness, Jonathan Carson, that after George Summers had been summoned as a talesman, he heard him say, that “ it was of no use to take “ him, as he had made up his mind against Binns; that Binns “ had published a libel against religion, and he would give “ his verdict against any man who published a libel against “ religion, and that he would inform the Court of his opi- “ nion, if they went to impannel him on the jury.” In corroboration of Carson’s evidence, it was proved by Lambert Smith, that during the trial he heard Carson say, substantially, the same thing that he has sworn, at Rubicam’s tavern, in the presence of ten or a dozen- people. On the other hand Summers swore that he never said any such thing, and that in fact so far from having made up his mind, he did not know what the cause of action was until after he was impannelled; and he stands corroborated by this circumstance, that he did not say any thing to the Court of his having formed — 348 — an opinion on the subject. I am loth to impute perjury to ' any man where there is a possibility of mistake. It is possible, that in a crowded court house, Carson might have mistaken something which he supposed to have fallen from Summers. But I do not conceive it possible that Summers can be mistaken as to his having made up his mind against the defendant. It appears that they are both men of good character. All that I can say therefore is, that it is an extraordinary affair, but I do not consider the fact set up by the defendant as sufficiently established. There is another circumstance which would make me incline against a new trial on this point. It does not appear at what precise time, this matter first came to the knowledge of the defendant or his counsel; but it is very certain that it was before the verdict. Now if the defendant supposed that he should not have a fair trial, he ought to have laid the matter immediately before the Court, and requested that the jury might be discharged. He ought not to have taken the chance of a verdict in his favour, and kept his motion for a new trial in reserve; because the plaintiff and defendant were then placed on an unequal footing. I mention this for the direction of those, who may happen to be in like circumstances in future. 2. In order to understand the second and third points, it will be necessary to take a view of the evidence, [which the Chief Justice accordingly stated.] If the judge had been satisfied that the papers were not identified, he might have withheld them from the jury; but considering it as a doubtful matter, I cannot say that he was wrong in submitting it to the jury. It was possible that the plaintiff might have inserted a paper of his own, in the file which he found upstairs; but enough had been shown to authorise the Court to submit the matter to the jury. It is like the common case of a deed which is not immediately in issue, being offered in evidence. If the Court think it not sufficiently proved, they may refuse to suffer it to be read. But if the evidence in favour of it has any considerable weight, they may and generally do leave it to the jury. 3. Besides the paper of the 16th of September found in Donaldson's house, there was another of the same date given in evidence, which was proved to have been purchased from the defendant’s shop. This being identified beyond all — 349 — doubt, the judge told the jury that they might compare the type,devices &c. on this, with the twopapers found in Donaldson’s house. The defendant’s counsel say this was wrong, because proof by comparison of handwriting is not legal, and á fortiori proof by comparison of types &c. If comparison of hands were in no case legal evidence, it would operate strongly in favour of the defendant’s argument; but I do not take the law to go so far. After evidence has been given in support of a writing, it may be corroborated by comparing the writing in Question, with other writing concerning which there is no doubt. The law is so laid down in Peake 104, who says, “ that the courts of justice have wisely rejected “ all evidence from mere comparison of hands, unsupported “ by other circumstances.” Some of the old books give us a reason for not submitting comparison of hands, that perhaps some of the jury cannot write. But when they can all iwrite, that reason has no weight; and I believe it is very rare indeed at this time of day, to find a juryman in this city who cannot write. If the discovery of truth is the object of evidence, it must be confessed, that in doubtful cases the jury, after hearing other testimony, may be much assisted by a comparison of hands. On the same principle I think that a foundation being first laid, the jury may be permitted to compare the types, devices &c. of newspapers. In general such evidence would not be very strong. But cases may occur in which a comparison would be decisive. The motion in arrest of judgment remains to be considered. It has been contended for the defendant that the matter complained of is not a libel. If it be not, it seems to me, that it is no easy matter to compose a libel. Let us see what it is that the defendant has inserted in his paper. He charges the plaintiff, “ with having been deprived of a participation “ of the chief ordinance of the church to which he belongs, “ and that too, by reason of his infamous and groundless as- “ sertions.” The distinction between slander by words, and by printing or writing, is so well known, that it is unnecessary to dwell on it. Suffice it to say, that any malicious printed slander, which tends to expose a man to ridicule, contempt, hatred or degradation of character, is a libel. But say the counsel for the defendant, no man’s character suffers in Pennsylvania by an exclusion from the rites of the church — 350 — to which he belongs, because by our constitution the only "test for opening the door to honour and office is, “a belief “ in one Supreme Being and a future state of rewards and “ punishments.” But how does that bear upon the question? The plaintiff is not charged merely with a voluntary abstinence from the principal sacrament of his church, or being deprived of that sacrament for any innocent or meritorious action, but with an expulsion from it on account of his infamous unfounded assertions* To say of a man in a newspaper, that he is guilty of infamous falsehoods is clearly a libel; and is it less so, because the elders of his church have found him guilty, or because in order to evade the judgment of those elders, he has absented himself from the sacrament of the Lord’s supper, as is alledged in the paper of the 16th of September? All persons who become members of a religious society are subject to the discipline of that society. The law permits it, and very wisely, because it tends to the preservation of religion and morals. It is understood that according to the rules of the church to which the plaintiff belongs, if he had really been guilty of infamous falsehoods for which he refused or neglected to make atonement, he. might after proper admonition have been excluded from the sacrament of the Lord’s supper. Now is it possible that after such an exclusion for such a cause, any man could keep his standing either in the society to which he belongs, or in the world at large? In my opinion he must sink under the opprobrium. I can have no doubt therefore of the matter charged in the declaration being a libel. Upon the whole my opinion is against a new trial, and against arresting the judgment. Yeates J. Five reasons have been alledged for this Court’s awarding a new trial; two of them only have been insisted upon by the defendant’s counsel during the argument. The first ground taken, that George Summers, one of the jurors, had prejudged the cause in favour of the plaintiff before he came to the book to be sworn, does not appear to me to be founded in fact. He has positively denied it upon his oath, and has further sworn that he was wholly ignorant of the cause of action, until it was opened by the plaintiff’s — 351 — counsel. Previous thereto, he thought it bad been some quarrel between the parties about politics. The testimony' of Jonathan Carson cannot be reconciled with that of Summers, being directly contradictory as to the supposed declarations; but charity would induce me to hope, that Carson’s memory has been defective. We know from experience, that jurors will sometimes make use of finesse to escape from serving in that capacity; but it is perfectly clear that Summers alone could know the real state of his own mind antecedently to his being sworn as a juror. Besides, though the defendant here cannot ascertain with precision the time when the supposed declarations of Summers were communicated to him, he admits that it must have been, previously to the jury’s making up their verdict. To intitle him to the advantage of his exception, he should have disclosed the information he had received promptly to the Court. What the judge would have done under that disclosure, — whether he would have confronted the witness and juror, and deter-, mined the fact as to the matter of exception, — or whether he would have thought it more eligible to discharge the jurors from giving any verdict, I will not presume to assert; but in this I am very clear, that it would be highly unequal and unreasonable, that the defendant should have two chances, by affirming the verdict if it passed in his favour, but if unfavourable to him, by obtaining a new trial. The second reason urged in support of a new trial, is that there was a chasm in the testimony adduced by the plaintiff, to prove the defendant’s publication of the Democratic Press of the 9th off September 1808, it being one of the papers charged in the declaration. It is contended that the identity of that paper shown in evidence to the jury was not established, and therefore the same ought not to have been read to them. I readily admit, that in the trial of every suit the probata must correspond with the allegata, and that the judge usually decides on the conformity of' the evidence offered, to the case before him. Should he be of opinion that the testimony proposed is impertinent to the issue then on trial, or does not establish the fact for which it is adduced, he will at once overrule it. But should it be dubious and equivocal in his judgment, if it tends to prove the fact relied on, he may and frequently does submit it to the jury for — 352 — their decision, with proper instructions to them as to the law arising on the facts as found by them. This subject came before the Court for their deliberate consideration in Lancaster district, upon an appeal from the Circuit Court of York county, between the commissioners of Beiks county and Ross. The doctrine is held as I have already laid it down. The judges in delivering their opinions put several cases by way of illustration. Where a deed is offered in evidence, the Court if they please, may decide whether it is sufficiently proved; but they may if they please leave it to the jury to determine on the sufficiency of' the proof, and then it is read tvith proper instructions. So in the case of a receipt supposed to be signed by the plaintiff or his agent, for the whole or part of the sum demanded, the genuineness of which is questioned, and the matter remains doubtful in the mind of the judge, it is more safe and correct to submit the fact to the decision of the jury, than for the judge to determine it himself. I adhere to the opinion which I then delivered, that such a line of conduct is most congenial to our judicial system. 3 Binn. 542. 545. Circumstanced as this case was, I think the judge was not bound to reject the testimony offered to prove the publication, and that he did not err in permitting it to go to the jury with proper instructions for the regulation of their conduct. I cannot bring myself to believe that in no case whatever is the comparison of hands evidence. The uniform practice of this Court is directly otherwise. It has been said, but not insisted upon, that the damages found are excessive. The case certainly is not of that kind, wherein the damages assessed merit that denomination. As to the matters urged in arrest of judgment, that the publications charged are not libellous, I have no difficulty whatever. Any publication which tends to bring a man into disrepute, ridicule or contempt, is a libel in a legal sense. The distinction between words written or printed' and published, and the same words spoken, is clearly settled. Litera scripta manet. Charging another with being “ deprived of a “ participation in the chief ordinance of the church to which “ he belonged, by reason of his infamous groundless assertions,” — calling him “ a. public pest,” — and “distinctly “ and decidedly affirming, that he had absented himself from — 353 — “the table of the Lord’s supper, and thus prevented the “sessions from being called to investigate his conduct,” necessarily tend to disgrace a man in society, and make others to shun him. Such charges create ill blood, and manífestly lead to breaches of the public peace. I am well satisfied that such publications are libels, and that judgment upon the verdict be rendered for the plaintiff. Brackenridge J. was of the same opinion. New trial refused, and judgment for plaintiff.