Wheeler v. Shields

Smith, Justice, delivered the opinion of the Court: This was an action brought to recover damages, by Shields, of Wheeler, for charging him with having murdered his wife in the town of Vicksburgh, Mississippi, The declaration contains two counts; the first charging the words to have been spoken by Wheeler, in pursuance of certain information he had received of a third person, communicating the fact that a person, supposed to be Shields, had committed the act; that Shields answered the description, both by profession and description, and intimating that Shields was the person who had perpetrated the act. The second count charges Wheeler with having alleged distinctly, that “ Shields murdered his wife in Vicksburgh, and that he meant to prove it.” Wheeler pleaded the general issue. A verdict was found for the plaintiff. Motion for new trial below, and refused. Two exceptions were taken on the trial; one for the refusal to reject certain depositions read in evidence, on the part of the plaintiff, on the trial in the Circuit Court; the other for the refusal to give certain instructions prayed for by the defendant, Wheeler’s, counsel. It is to be observed, that it does not appear that the depositions contained in the record were the only evidence adduced on the trial of the cause. The speaking of the words charged, must have been proved by other evidence than the facts contained in the depositions, which seem to be silent as to that portion of the case. It is, then, apparent, that this Court has not the means of determining whether, or not, on all the evidence given in the cause, the Circuit Court erred in refusing to grant a new trial. Consequently we cannot disturb the judgment of the Court on that ground. In reference to the exceptions to the depositions introduced by the plaintiff on the trial in the Circuit Court, it is apparent, that where the commissions were not directed to particular persons as commissioners, to take the testimony of the witnesses, in such cases, the character of the magistrate, certifying the taking of the depositions, should also have been proven by the certificate of the proper officer of a court of record in the place where the depositions were taken, or by a certificate under the great seal of the State. The admission of the depositions not thus certified, however, does not affect the merits of the case. On looking into those depositions, they are found to relate to matters not directly material to the point in issue. That point is the speaking of the words, which the defendant only denied in his plea of the general issue. These depositions relate almost exclusively to the general good character of the plaintiff, Shields, and that fact was not necessary to sustain the action ; and was supererogatory, because the defendant had not attacked his character in his defence. The proof might possibly be proper, to increase the damages, but was unessential to maintain the action. The admission then of such of these depositions as were defeclively certified, considering the character of the proof, is not esteemed of importance sufficient to disturb the judgment. The refusal of the judge to give the instruction, “That if the jury believed from the evidence, that at the time the defendant spoke the words proved, he accompanied them with an explanation that this was the common report in St. Thomas, Upper Canada ; and that he spoke the words as merely giving the report, that the declaration is not sustained,” was correct. This could be no justification, had the defendant even pleaded a justification of that character; but the instruction asked was irrelevant, because nothing was in issue but the question whether the defendant spoke the words charged, or not. To induce the granting of a new trial, there should be strong probable grounds to believe that the merits of the case have not been fully and fairly tried, and that injustice has been done. (1) These reasons apply with peculiar force in actions of slander, and ought to have their full weight. The whole grounds have been attentively considered, and we can come to no other conclusion than to affirm the judgment. Judgment affirmed. Footnotes [(1)] 1 Bos. & Pul. 339 ; 2 T. R. 4 ; 8 Wend. 672 ; 5 Johns. 138 ; 2 Caines 90 ; 3 Johns. 532.