Kirkaldie v. Paige

The opinion of the court was delivered by Bennett, J. The slanderous words in the first count charge the plaintiff with the crime of perjury, and those in the second with the crime of theft. On the trial it seems testimony was given tending to prove both counts, but the plaintiff was permitted to abandon his first count, and the court directed the jury to lay that count, and all the evidence relating to it, out of their consideration. This is now claimed as matter of exception; but we do not think that there was any error in the proceedings of the county court in this particular. The rule of practice is thus laid down by Chitty, in his treatise on pleading, Yol. 1, p. 394 ;• in case “ there be an insufficient count, if the mistake be discovered before verdict, it is expedient to strike it out by leave of the judge, or to enter a nolle \prosequi as to such count, or, at the trial, to take a verdict on the sufficient counts.” So, where there has been a general verdict, and evidence given only on the good counts, the practice has been [261] for the court to permit the verdict to be amended by the judge’s notes; and even though evidence be given applicable to the bad count, yet if it appear by the judge’s notes that the jury calculated the damages on evidence applicable to the good counts only, the verdict will be amended.' In the case now before us, there could be no possible objection to the course adopted by the county court. The slanderous words charged in the two counts are entirely distinct and independent, and there could be no confusion in the minds of the triers as to what evidence was applicable to each count. Besides, it might well be enquired, whether it was not matter resting wholly in the discretion of the county court, and in no event matter of error. The only question, with which we have had any difficulty, is in relation to the admission of the testimony, which, was objected to. After ’the plaintiff had introduced two witnesses, to prove the speak,ing of the words, he proposed to prove that the defendant had, by solicitation, money, and threats, endeavored to induce these witnesses, who resided in the state of New York, to decline coming to court, or testifying against him. This testimony was admitted, and, if not admissible, the case must be opened. It is said, in argument, that this was proper evidence to show malice. But I cannot conceive how this has a tendency to show-the quo animo, with which the words might have been spoken. There seems to be no possible connection between them in this particular. The question, then, arises, has this testimony any tendency to confirm the witnesses, who had testified to the speaking of the words 1 And can any presumption be drawn from such improper conduct of the party, in relation to the fact of his having spoken the words charged in the declaration? We sometimes infer an effect from the proof of an adequate cause; and sometimes, upon the proof of an effect, we infer the cause. The improper conduct of the defendant, in attempting to keep the plaintiff’s wit-nesess from giving testimony, must have had a motive, a cause adequate to produce such an effect; and I think the most natural motive, for such conduct, is, to attribute it to. his supposed knowledge, that the truth would operate against him. Mr. Greenleaf, in his admirable treatise upon evidence, p. 42, sec.- 37, well says, “ that [262] the presumption of innocence may be overthrown, and a presumption of guilt raised, by the misconduct of the party in suppressing or destroying evidence, which he ought to produce, or to which the other party is entitled.” Roscoe’s Evid., p. 14, has the same principle. If a man is accused of an offence, and, upon being charged, has fled, or endeavored to make his escape,, this is competent evidence to go to a jury, as tending to overcome the presumption of innocence, and raise a presumption of guilt. So the introduction of a falsehood into the defence has a like effect against the prisoner. The spoliation of papers, material to show the neutral character of a vessel, furnishes a presumption against her neutrality. The Pezarro, 2 Wheaton 227. In Armory v. Delamire, 1 Strange 505, where the finder of a lost jewel would not produce it on trial, the jury were directed to presume it to be of the highest value of its kind. While. in Clunnes v. Pezzey, 1 Campb. 8, where the defendant had been guilty of no improper conduct, and the only evidence was of the delivery to him of the plaintiff’s goods, of an unknown quality, the presumption was held to be in his favor, and that, the^goods were of the cheapest quality. The case of Downer Bowen, 12 Vt. 452, is somewhat’in point. In that case it was held that the poverty of an execution debtor was admissible, as having some tendency to prove that the execution might have been delivered to the sheriff with instructions not to commit the debtor without express direction. That ease went upon the ground, that the poverty of the debtor furnished a motive, why such instructions might have been given, though the presumption is a very slight one arising from such a fact. Though it is true, as argued at the bar, that the defendant might have had other motives, and not the one we have assigned, why he wished to keep the plaintiff’s witnesses from coming to, court, .yet we think it is by far the most rational motive to suppose that he felt self convicted that he was in the wrong, and that this would be made manifest on trial if these witnesses should appear. Though the presumption might be slight, derived from such a source, and should be-acted on with great caution, yet a majority of the court think the evidence was properly admitted. The jury should judge [263] of the motive of such conduct in the defendant, and if, upon the whole case, they were satisfied that it proceeded from some motive, other than the one the most obvious, they would give no effect to this testimony against the defendant. It does not appear, from the’ bill of exceptions, for what particular purpose this evidence was offered, or admitted by the court, if admitted to show malice in the defendant, or if the jury had been instructed to consider it in that view, there would, we think, have been eirror. No question is raised in the case in regard to the charge of the court, no complaint is made, that the court omitted to give proper instructions to the jury on this evidence, or that they gave those which were improper. This is not to be presumed. The bill of exceptions must show affirmatively that there has been error. The result is, that the judgment of the county court is affirmed. Hebard, J., dissenting.