Polston v. See

Adams, Judge, delivered the opinion of the court. This was an action for slanderous words, charged to have been spoken by the defendant- of the plaintiff, and thereby imputing to him the crime of 'larceny in stealing lumber belonging to the defendant. The slanderous words were set out in three several counts of the petition, which concluded with a prayer for damages to the amount of $5,000. The answer denied the speaking of the words as charged in the first and second counts, and justified as to the last count, on the ground that the words were true, and that the plaintiff had been guilty of the larceny as charged. There were several mis-trials, but the case finally resulted in a verdict and judgment for the plaintiff for $500. The verdict was a general one, finding all the issues in favor of the plaintiff, and assessing a single sum of five hundred dollars for his- damages. Each party gave evidence tending to prove the issues on their respective sides. The plaintiff was alloAved to prove his own condition in life and also that of the defendant, as bearing upon the question of damages, and an instruction wag also given on this point in favor of the plaintiff. During the progress of the trial the plaintiff was introduced as a witness, and was allowed to testify in regard to what had been done and said by him in removing some lumber from the defendant’s mill when the defendant was not present. After the close of the evidence, various instructions were asked and given for the plaintiff, only one of which need be referred to, as there is no point made on the others. The instruction complained of was to the effect, that under the defendant’s plea of justification, the s^me amount of proof was necessary to convict the plaintiff as if he was on trial for the ..crime, and that if the jury entertained a reasonable doubt of liis guilt they must find for the plaintiff; that any such doubt, however, to be available, must be a rational doubt, growing out of the evidence in the case and consistent with it, and not a mere hypothesis or possibility of innocence. [295] 1. The objection, that there was not a finding and assess'ment of damages on each count of this petition, is not tenable. The words charged in each count had reference to the same crime, and might have been set forth in a single count. It was the same slander, uttered at different times, and it was proper to assess one amount of damages for the entire slander, though imputed at several times. 2. The plaintiff’s condition in life, as well as that of the defendant, are proper subjects of inquiry in slander eases on the question of damages. Slander, uttered by a man of great influence in society, would certainly be more injurious than if spoken by a party-of no consequence' at all. 3. The testimony, which the plaintiff was allowed to give in regard to what was done-and said when he took the lumber, was a part of the res gestee, and was properly admitted. The words spoken by him in the absence of the defendant were verbal adts, and as such admissible as a part of the transaction. 4; The main point discusse’d.here grows out of the instruction by which the jury were told, that if they had a reasonable doubt of the plaintiff’s guilt under the plea of justification, they must find the issues for him. I am not aware, that this question has ever been directly passed on by this court. So far as I know, the legal profession throughout the State have acted on the presumption that it was the settled law. It seems to have been so considered at the Circuits, and it is now for the first time mooted in this court. ■ It has the support of the English authorities, and, I presume, of the majority of the American courts. The reason of the rule is, that a verdict of a jury on the question of guilt or innocence has at least the same moral force as a verdict in a criminal trial for the same' offense. There seems to be no other civil case where a verdict has the same moral force. If this had been a suit for trespass against the plaintiff for the taking and conversion of the defendant’s lumber, the simple fact of trespass, without regard to the intention, would have [296] been sufficient to warrant a verdict. The animus furandi might have been totally wanting, and yet the plaintiff be guilty in the law of trespass. Here, as in a trial for the crime of larceny, th&animus is the main point before the jury, and the force of the verdict of guilty is looked upon as the same. A party found guilty on a plea of justification, though not liable to the consequences or punishment attached to the same result in a criminal case, is covered by the same moral turpitnde, and in the eyes of the community is pointed at by the finger of scorn as equally odious. In actions on policies of insurance, where the defense is that the defendant burnt his own house, it has been held that a mere preponderance of evidence is sufficient to establish the defense. The distinction is, that this is a good defense under the policy, no matter -what the intent of the defendant was in burning his house. By doing so, he violated the express terms of the polmy, and could not take advantage of his own wrong. Our statute makes it arson for a party to burn his own property in order to recover insurance on the building. The question, whether he burnt it for one purpose or another, is wholly immaterial in an action on the policy. If he voluntarily burnt it at all, he will not be allowed to recover, as, by doing so, he violated the policy itself. The plea of justification in slander is unlike any other civil case, and for this reason it has been treated as an exception to the general rule in regard to the preponderance of the testimony and the amount necessary to a conviction. This court has no power to make or repeal laws, we must decide the law as we find it to exist. If a change in this rule be desired, the legislature must be looked to, and not the courts, to make it. Let the judgment be affirmed. The other judges concur, except judge Sherwood, who dissents.