Parmer v. Anderson

RICE, C. J. —Without undertaking to comment upon the numerous cases relating to the admissibility, in an action of slander, of words spoken by the defendant after the commencement of the suit, we shall content ourselves with stating the conclusion upon the subject to which principle and authority have impelled us. A repetition of the slanderous woixls alleged in the complaint, or the speaking of words of similar import, or which expressly refer to those alleged in the complaint, after the commencement of the suit, is admissible. But they are admissible only for a defined purpose, that is, to show that the words charged in the complaint were spoken, not heedlessly, but maliciously. Eor that purpose, and to that extent, their admissibility rests upon satisfactory ground y because, if they are not, per se, “ the evidence of a malicious heart brooding over its victim,” they certainly must be treated as circumstances which naturally and reasonably tend to prove malice in the sj)eaking of the words alleged in the complaint, or from which it may naturally and reasonably be inferred.” They must,' therefore, be held admissible, inasmuch as malice in the speaking of the words charged in the complaint is regarded as the gist of the action, or essential to a recovery by the plaintiff. But words spoken after suit brought, which are not a repetition, either in letter or substance, of those charged in the complaint, which are not of similar import, and which do not clearly refer to them, are not admissible. Thus, words spoken after action brought, which amount to a distinct slander, in imputing to the plaintiff a crime different from that imputed by the words alleged in the complaint, and which do not refer to those words, ought not be received.—Bodwell v. Swan, 3 Pick. 376 ; Watson v. Moore, 2 Cushing, 133; Finnerty v. Tipper, 2 Camp. [84] 75; Teague v. Williams, 7 Ala. R. 844; Ware v. Cartledge, 24 Ala. R. 622; 5 Phil, on Ev. (edition of 1849, by Van Cott,) 246, 247, and notes; Miller v. Kerr, 2 McCord, 285. The words, as charged in the complaint in this case, impute to the plaintiff' the crime of larceny—the stealing of slaves. Words, spoken after action brought, imputing to the plaintiff meanness and perjury, without any reference to the words charged iu the complaint, are not admissible. The court below erred, therefore, in permitting the plaintiff to prove, by Walton, that on the day preceding the trial, the defendant said to the witness, “that the plaintiff’ was a mean dog, and that all the Anderson family had sworn damn lies against him.” From them the inference is not a reasonable or natural one, that he spoke the words charged in the complaint, with malice.—See Scott v. Cox, 20 Ala. R. 294; Brock v. The State, 26 Ala. R. 104. The court erred, also, in admitting Walton to testify to what was said in the interview on the night preceding the trial, between the defendant, his son Pickens, and the witness. What was said by the defendant on that occasion, is evidence of passion; but, in law, passion is distinguished from malice.—The State v. Will, 1 Dev. & Batt. From what the father did say on that occasion, the inference is not authorized, that the words alleged in the complaint were spoken with malice. [2.] There was no error in refusing the charge as asked by the defendant. That charge does not 'conform to the law as laid down in the authorities.—See Van Reusselaer v. Dole, 1 Johns. Cases, 279 ; Trabue v. Mays, 3 Bana, 138 ; Pegram v. Styron, 1 Bailey, 595; Norton v. Ladd, 5 New Hamp. R. 203; 1 Starkie on Slander, (edition of 1852, by Wendell,) 99, and notes; Kirksey v. Fike, 29 Ala. R. 206 ; Henry v. Power, 10 Mees. & W. 564 ; Hanklason v. Bilby, 16 Mees. & W. 442 ; Wright & Lindsay, 20 Ala. R. 428. The foregoing authorities show it to be settled, that the defendant, in an action of slander, may show that the words related to a known transaction, not amounting to [85] tbe charge which the words would otherwise import. But that is not the proposition asserted in the charge which was asked by the defendant in the present case. See Wright v. Lindsay, and other cases, supra. As the question in relation to the admissibility of the declaration of the deputy sheriff Hughes may not be presented in the same shape on another trial, and as we must reverse the judgment for the errors above pointed out, we shall not pass on it.—See Harrison v. Harrison, 9 Ala. Rep. 73. Judgment reversed, and cause remanded.