Weir v. Hoss

ORMOND, J. Previous to entering upon the decision of the questions presented by the assignment of errors, it is necessary to determine whether the bill of exceptions is to be considered a part of the record. From a statement of the judge who tried the cause, appended to the bill, it appears that it was not sealed at the term of the court at which the cause was tried, and not until more than a year afterwards. He explains why the bill was not sealed — 885 — during the term, and the causes which led to further delay, which proceeded principally from the disagreement of counsel as to the points reserved, and the sudden departure of the judge from one of the courts, at which it was expected to be made out. It is firmly fixed in our practice, that a bill of exceptions may be sealed by the judge before whom it was reserved, alter the adjournment of court, if the facts remain in his recollection so that he can, without danger of mistake, certify the point reserved; [Strader, Perine & Co. v. Alexander, 9 Porter, 441;] and that the bill, when so sealed, becomes a part of' the record. [Poole v. The Cahawba Railroad Company, 5 Ala. 241.] A number of affidavits, and a letter from the presiding judge to one of the counsel, have been produced, and a motion made to suppress the deposition. The affidavits certainly tend to establish, that the bill of exceptions does not correctly state the points reserved on the trial, or at least to render it a matter of doubt, which is strengthened by the letter of the judge admitting that he did not recollect the facts very distinctly, and that he relied upon the statements of the defendant’s counsel; but we are clear in the opinion, that this is not sufficient to authorize the suppression of the deposition. We cannot try the facts, and determine what was the point reserved at the trial; that can only be ascertained by the court before which the point was reserved. In this case, the judge has certified the bill of exceptions: it is a part of the record, and can no more be impugned by extrinsic proof than any other part of the record. In The Bank at Decatur v. Kinsey, [5 Ala. 9,] we held, that this court could suppress a bill of exceptions fraudulently or sur-reptiously obtained; but that is not this case. There is no pre-tence that the judge did not sign this bill of exceptions, with full knowledge of its contents. If, from the loss of his notes of the trial, or from any other cause, the facts, as they transpired at the trial, had faded from his memory, or had become so indistinct that he could not recollect with certainty what took place, and the counsel on both sides could not agree upon the exception, he should have refused to sign it. Having signed it, no subsequent admission by him can impair its validity. The practice of signing bills of exceptions after the adjournment of court, ought to be discouraged as much as possible; and when submitted to from the necessity of the case, ought certainly, — 886 — if practicable, always be shown previously to the opposing counsel. Upon the merits, we are very clear in the opinion that the publication complained of, is libellous. The inevitable tendency of such an indecent and shameful publication, was to cover the party libelled with ridicule, contempt, and disgrace; and to cause her to be shunned and avoided by the society in which she lived. This, if published wantonly or maliciously, is a libel, and ought to be punished as such. It is contended by the counsel for the plaintiff in error, that the charge is so vague and uncertain, that it cannot be intended that it was designed to apply to any person, and, therefore, cannot be made certain by an innuendo. The office of the innuendo is to explain the allusion to the party intended to be libelled; and if the allusion cannot be rendered certain without reference to the other matter, such extrinsic matter must be placed on the record, by reference to which the words complained of become actionable. The office of the innuendo is to explain; it does not introduce new matter. [King v. Horne, 2 Cowp. 684; Holt v. Scholefield, 6 Term, 691.] Without considering the first count, about which there might possibly be some doubt, the second count charges the libel thus: “To the public, and more especially the ladies — know, as it is well known, that Mrs. Hoss (meaning the plaintiff Sarah) is getting along in the world,” &c. &c. It cannot be questioned that the innuendo here is appropriate; it does not aver or introduce any new fact, but explains the allusion — that by Mrs. Hoss, the defendant meant Sarah Hoss. In a subsequent part of the same publication, it is stated, that “she, (meaning the plaintiff Sarah,) I am told, visits Mrs. Burnett, alias Haden, decent company for decent folks; if, but as some folks say, they suit very well. I think such ladies ought to establish a whore house: they (meaning said Sarah and Mrs. Burnett) would ,,make good street whores,” &c. áre. Here again the averment, that by the terms “she” and “they” were meant the plaintiff Sarah, and the plaintiff and Mrs. Burnett, the innuendo is performing its appropriate function, the explanation of the terms employed, and which require for their explanation the aid of no other fact. The innuendo here merely explains the use of the personal pronouns she, and they; and whether the explanation thus given is correct or not, — 887 — is to be ascertained by the context. In this case, it is clear that Mrs. Hoss is the person referred to by the personal pronoun “she.” In a succeeding part of the libel, the term, “filly horse,” is alleged to mean the plaintiff Sarah, and we do not doubt the innuendo is proper. It is a play upon the plaintiff’s name, Hoss, which any one knowing the plaintiff and reading the libel would at once understand; and is in principle like the case of a libel by signs, or by painting, so significant that though the name of the injured person is not used, every one at once understands who is intended to be caricatured, or ridiculed. Without, therefore, considering the first count, as the second is certainly sufficient, and the demurrer was general to both counts, it was properly overruled. It was not necessary to set out the entire publication, but it was sufficient to set out such parts as the plaintiff complained of as libellous; if the plaintiff does not, by omitting some portions, produce a new arrangement, and thereby alter the sense. [Tabart v. Tipper, 1 Campbell, 351.] The proper mode is to show that the selected parts are extracts, and if the omitted parts explain, or render innocuous, the parts selected, the defendant may have the advantage of it on the general issue. Such was the mode adopted in this case in strict conformity with the precedents.— [Metcalfe v. Williams, 3 Litt. 389; Buckingham v. Murray, 2 Carr. & Payne, 46; Starkie on Slan. 268.] We proceed to the consideration of the bill of exceptions. — . The original libel having been proved to be lost, the plaintiff produced three copies, each of which was proved to be a substantial copy of the original libel, and all of which differed from each other in some respects. To the introduction of each of the copies, the defendant objected; but the objection was overruled, and all were permitted to be read to the jury. The objection now urged is, that this was proving, not the libel as laid in the declaration, but equivalent slanderous words, which this court held, in Williams and Wife v. Bryant and Wife, [4 Ala. 44,] was not sufficient. The question before the court was, whether the copies were correct copies of the original. To be so, they must have corresponded with it in all respects. It is a fair presumption, that there was a difference between the copies and the original, but in what — 888 — that difference consisted, we have not the means of determining, as the copies are not set out in the record, nor is it stated in what the difference consisted. It may be that words of equivalent import were substituted in' the copies for the language of the original; or it may be that the difference consisted in false spelling, or in the collocation of a sentence, which did not alter the meaning. If the former, the copies should have been rejected; if the latter, the variance would have been immaterial. It is the duty of the party complaining of an error to show it on the record affirmatively; and as all reasonable presumptions are to be made in support of the judgment of the court, we must assume that the variance was immaterial. The plaintiff did not undertake to set out the libel in haec verba, or according to its tenor; but that the defendant published a libel of and concerning the plaintiff, “containing, among iother things, the false, scandalous and libellous matter following, to wit.” The rule in such cases is, that the omission or alteration of a letter, which does not render it a word of different signification, will not be a fatal variance. [Calhoun v. McMeens, 1 Nott & McCord, 422; Metcalfe v. Williams, 3 Littell, 387. See the authorities collected by Mr. Starkie, 2 Vol. Ev. 858.] That the court left it to the jury to say whethpr the copies were correct transcripts of the- original, was an error of which the plaintiff in error cannot complain, as the court had previously decided that they were admissible in evidence, and thereby affirmed their correctness. The permission afterwards given to the jury to pass on that question, was for the benefit of the defendant, and he cannot, therefore, complain of it. Finally; the court charged, that if the defendant either composed or published the libel, the jury must find for the plaintiff. This is a plain error. To constitute either verbal or written slander, there must be a publication — the contents must be made known to some third person or persons. This is not denied by the counsel for the defendant in error, who insist that the point was not made in the court below, that publication was conceded, as is evident from the fact that there were so many copies of the libel extant. It is, to be sure, very probable that such was the fact; but still it may be that the libel was not intended for publication, and that the copies were taken without the consent of the defendant. There is nothing in the record which conclusively — 889 — Shows that publication was made; and as the charge was clearly erroneous in point of law, and upon a point necessarily involved-in the issue, it is impossible that we should say that the defendant was not prejudiced by it. It may have been the point on which the case turned; and for this error, the judgment must be reversed,- and the cause remanded.