Johnson v. Scribner

Hosmer, Ch. J. The plaintiff brought an action of slander against the defendant for falsely and maliciously saying of him, that he was a murderer. At the trial, on the plea of not guilty, and without notice of any justification, the words spoken were proved, most explicitly, by three unimpeached witnesses. The place where they were uttered, was a ball-room, where a dancing assembly was convened, and a violin was playing, at, or about the time they were published. To add to the confusion of the scene, a fracas took place at nearly the same period; and it is an inference all but certain, that the attention of the persons present, for the most part, must have been directed to the different objects above-mentioned. A number of witnesses were adduced by the defendant, who testified, that they heard no such words spoken as the plaintiff was en-deavouring to establish; and that, in their opinion, they should have heard them, if they had been uttered. From the silence of the motion in this case, it may be assumed, that the attention of the witnesses was not called to the conversation of the defendant; and that the words charged may have been uttered [188] under such circumstances, that they were not in a situation to hear them, and had no notice to regard them. It is reasonable to suppose, that in common with others, they were listening to strains of music, and carried away with the fascinations of the amusements they came to enjoy, so far as their minds were not engrossed, by the turbulent events that had taken, or were taking place. It, likewise, is not improbable, that the noise alone might have rendered it impossible for the defendant’s witnesses, to hear the expressions used by the defendant, had their attention been excited to hear them. The inferences I have drawn derive confirmation, by the act of the court, in returning the jury to the third consideration; and on the observation of the judge, that the testimony of three witnesses of unimpeachable character, directly supporting the words alleged, and contravened by no proof, except the negative evidence of the defendant’s witnesses, clearly established the plaintiff’s allegations. If a witness swear positively, that he saw or heard a fact, and another who was present, that he did not see or hear it; and the witnesses are equally faithworthy; the affirmative witness is to be believed. If he testify untruly, he is guilty of perjury; but it by no means will follow, that the negative witness would be perjured, although the affirmative were true. The falsity of his testimony, if it actually were false, might be attributed to inattention, mistake or defect of memory; and therefore, independently of the usual presumption in behalf of innocence, the probability is strongly in favour of the affirmative. If in a comparison between the witnesses, in respect of the means and opportunity, which they have had, of ascertaining the facts to which they testify, it turns out that the one has had more competent and adequate means of information than the other, or that under the circumstances of the case, the attention of the witness testifying that he did not see or hear, was not so likely to be so fully excited and particularly directed to the facts, as that of the one who swears affirmatively, this principle cooperates with the one first stated, in all cases, where there is room for error and mistake. It is true, that evidence of a negative nature may, under particular circumstances, not only be equal, but superior, to positive evidence. This must always depend on the question, whether the negative testimony may be attributed to inattention, deficient means of knowledge, error or defect of hearing. If two persons listen attentively to a con189 versation between others, for the express purpose of ascertaining the words spoken, there would be little reason for ascribing the variance between their positive and negative testimony, to inattention or mistake; and the only enquiry would be, as to the credit of the witnesses. But if one person has the means of information, and attentively employs them, and the mind is in entire uncertainty, whether another person, or many others, had the means of knowing, or exercised any attention on the subject, the positive testimony of the former clearly outbalances the negative of the latter. Where there is an apparent inconsistency or contradiction in the testimony of witnesses, such construction shall be put upon it, as to make it agree, if possible; for perjury is not to be presumed. The reconciliation of the evidence, in this case, is perfectly easy. The affirmative witnesses have testified to the truth, or, prima facie, they are perjured. The witnesses, who have sworn, that they did not hear, may have testified truly; perhaps through deficient means of knowledge, or inattention to the conversation, relative to which they have given evidence. And this presumption, founded as it is in law and common can-dour, is powerfully enforced, from the noise and tumults, and attractions, with which they were surrounded; and the still further probability, that they were not within earshot of the defendant’s conversation. The inference is unquestionable, that the verdict is manifestly and palpably against the weight of evidence, and the facts ought to be submitted to another jury, that they may be investigated, and considered with great deliberation and attention, in order to correct any mistake that may have intervened. For nothing is more preposterous than the idea, that the mistaken decision of one jury, a fallible tribunal, may not be corrected, by the reexamination and determination of another. The rule that a new trial is not to be granted where there was evidence on both sides of the cause, has no application here, nor is it ever applicable to a case where the weight of testimony on one part has been entirely disregarded, and countervailed by the most feeble evidence, or no evidence in effect, on the other. The action of slander is not a penal action, nor in the nature of one; although the latter idea has someties been acted on. A good character is preferable to great riches; and when assailed by the malice and falsehood of another, and perhaps [190] prostrated for a time in the dust, why should it not be vindicated, in the same manner, and with the same latitude, as an injury to property? I consider the observation to have been greatly misapplied. This action is sometimes brought unnecessarily and vindictively, not to support reputation, but to gratify revenge. In a case thus circumstanced, the action may, in its nature, without transgressing the usual rules of speech, be considered, virtually, as penal. But that an honest man, of fair character, should falsely and maliciously be stigmatised as a murderer, and when he resorts to the law for the only vindication it can impart, shall be inhibited from a pursuit of justice in all its forms, shocks all my ideas of propriety. And to illustrate the point a little further; when the person calumniated proves his case, and is deprived of a verdict, through a palpable misdeter-mination of the jury, that then there should be a rule to prevent the rectification of the error, in the ordinary mode of a new trial, would evince a great disregard to the sacred right of reputation. A new trial ought to be granted, without payment of costs; for the court is not called on to grant a boon to the party, but correct the misdetermination of a jury. The other Judges were of the same opinion, except Brain-ard, J., who was absent. New trial to be granted.