Stearns v. Long

De Courcy, J. Two of the exceptions taken by the plaintiff relate to the admission of evidence and may be disposed of briefly. The written reports made to the board of police, of which the plaintiff was á member, by police officers especially appointed by the board to investigate the sale of intoxicating liquor in licensed hotels on Sundays and holidays, were competent evidence. They tended to show violations of the law by the various innkeepers, and hence that the alleged libellous statements that the plaintiff and his associates on the board had been lax in the enforcement of the law relative to the sales of intoxicating liquors by innholders, were true in substance. Conner v. Standard Publishing Co. 183 Mass. 474. The ground of the plaintiff’s objection was that the judge of the Superior Court on this evidence had found the plaintiff not guilty of any violation of law. But as the issue and the parties were different, the doctrine of res judicata does not apply. The question put to the witness Craig clearly was a preliminary one, namely, whether he made the statement referred to, not whether that statement was true; and it was so stated by the judge. This exception must be overruled. At the close of the evidence of the defendant, the ■ plaintiff made an offer of the testimony of witnesses as to his character and reputation in the community. This was offered not as bearing on damages but on the issue of liability, and in any event would be immaterial on the question of damages in this case, as the verdict was for the defendant. Howland v. George F. Blake Manuf. Co. 156 Mass. 543. In civil proceedings, the general rule is that such evidence is immaterial and hence inadmissible even though the cause of action is one for which a criminal prosecution might be brought. Geary v. Stevenson, 169 Mass. 23. Colburn v. Marble, 196 Mass. 376. In an action of libel or slander, in some States evidence of the plaintiff’s reputation is admissible in chief, on the theory that his character is put in issue. 25 Cyc. 482, 514. It is assumed by the plaintiff in his argument that where the words charge a crime he may show his good character in rebuttal [156] of evidence introduced by the defendant in justification; but that, we think, must be regarded as an open question in this Commonwealth. The case of Harding v. Brooks, 5 Pick. 244, is authority for the introduction of such evidence only on the issue of damages, and in cases where the charge sought to be proved is of a criminal act, as was pointed out by Knowlton, J., in Howland v. George F. Blake Manuf. Co. 156 Mass. 543, 569. And in the latter case it was decided only that, if reputation was admissible in an action for libel, the plaintiff had not brought himself within the rule limiting such evidence to cases in which the charge sought to be proved is of the commission of a crime as distinguished from a charge of lesser magnitude. See Geary v. Stevenson, 169 Mass. 23, 32. Even assuming, without deciding, that where the defendant under his plea of justification assumes the burden of proving that the plaintiff was guilty of acts punishable as crimes, the plaintiff may repel that proof by evidence of good character, nevertheless in the case at bar the trial judge rightly excluded the evidence offered. The language used by the defendant in the alleged defamatory publications, interpreted by the ordinary meaning, of the words, does not seem to us to impute bribery or any other act that is punishable criminally. Sillars v. Collier, 151 Mass. 50. Furthermore, the offer of evidence was not confined, as it should have been, to those traits of character which the imputed wrongdoing involved. Commonwealth v. De Vico, 207 Mass. 251. Exceptions overruled.