Powers v. Presgroves

HARRIS, J., delivered the opinion of the court. This is an action of slander, brought by the defendant in error against the plaintiff. The plaintiff in error relied on the general issue, and special notice of justification. The two first causes of error assigned relate to the organizatioii of the jury. It was moved by the defendant below before proceeding to trial, that the court should have each juror sworn to answer questions, as to whether he had formed or expressed an opinion in the case, and it was offered to be proved to the court as a ground for this inquiry, that the case was one of great notoriety in the county, and that there was prejudice against the defendant; all which was refused by the court. As a general rule, whether in civil or criminal cases, it is the duty of the court to empanel for the trial of each case, a competent and impartial jury, and for this purpose, therefore, the court may propound to the jurors returned, not only such interrogatories as are required to ascertain their competency, but also in its discretion [240] may ask such other questions, not tending to degrade or render the jurors infamous, as may test their impartiality, prejudice, or bias. In this mode of investigation, counsel have no right to interpose and interrogate jurors themselves, except by direction of the court; but the whole matter must be left to the sound judgment and judicial discretion of the presiding judge. This mode of proceeding is not to be confounded with a proceeding on a challenge for favor, or for principal cause, where the party, by his counsel, is bound to specify the cause of challenge, and whether it is for principal cause, or for favor, so that an issue in law or of fact may be joined, and the mode of trial determined. In such case, the ground of the challenge must be distinctly stated; for without this the challenge is incomplete; no issue could be properly joined ; and it may, therefore, be wholly disregarded by the court. A party cannot simply by name, make his challenge for “principal cause,” or “for favor.” It must be made in such terms, that the court can see which it is, and so determine by what forum, it is to be tried, and whether the facts alleged, if true, are sufficient to support such challenge. Mann v. Glover, 2 Green’s (N. J.) R. 195 ; and see Freeman v. The People, 4 Denio, 31, for a very clear and distinct statement of these doctrines. And see Wharton’s Amer. Or. Law, 4th edit. § 2989-3014, and notes and authorities cited. It will thus be seen, that in the mode of procedure adopted by counsel, their application was one addressed wholly to the discretion of the court, in the exercise of which this court will rarely interfere. If, instead of addressing themselves to the discretion of the court, and asking its direct interposition to interrogate the jurors, they had propounded grounds of challenge, it would have been the imperative duty of the court to have caused the trial of the issues thus presented. But only addressing themselves to the court’s undoubted discretion, by the mode proposed, the refusal of its interposition in that form, is no ground of error here. ■ The next ground of error assigned is, that the court refused to permit the defendant, under the general issue, with notice that he would prove “ the truth of the words” of which complaint is made, in bar of said complaint, to give in evidence any matter of justifi [241] •cation, but required the defendant to file additional notice, stating the precise charges on which he relied as justification of the words spoken. There was no error in this action of the court. The object of the notice, is to afford the plaintiff an opportunity of proving his innocence of the charge imputed to him. And while it need not in form, amount to the plea of justification, it must as fully notify the plaintiff, in substance, of the specific charge intended to be proven. See 2 Saunders P. & E. 808, 804. The fifth and sixth assignments of error, relate to the exclusion of the facts and circumstances occurring on the trial between these parties, in the justice’s court, immediately preceding the speaking of the words charged, and which gave rise to them, showing the provocation and state of feeling under which they were uttered. We think this evidence should have been admitted, in’mitigation of damages at least. The seventh assignment of error is, that the court rejected the evidence, offered to prove the rumors against plaintiff’s character, among a minority of his neighbors. There was no error in this, according to the authorities. See 2 Greenleaf Evidence, 466-4T4, § 424. General character seems to be alone admissible; particular rumors are to be rejected. The eighth and ninth assignments, relate to the plea of justification, setting up, that plaintiff had sworn falsely, in rendering to the tax assessor a list of his cattle liable to taxation. We think this evidence should have been admitted; both the testimony of the assessor, and the tax-list made out by him, in corroboration of his statement, were competent to be submitted to the jury on the issue. It is next assigned for error, that the court refused to permit defendant to prove what the character of defendant was, for truth and veracity, out of his immediate neighborhood, and what rumors were against the plaintiff out of his neighborhood. The rule in relation to the proof of character is, that the inquiry must be made as to his general reputation, where he is best Jcnoum, —what is generally said of him, by those among whom he dwells, or with whom he is chiefly conversant. Ordinarily, the witness ought to come himself from the neighborhood of the person whose charac [242] ter is in question. But the court, unless under peculiar circumstances, will not undertake to determine, by a preliminary inquiry, whether the impeaching witness has sufficient knowledge of the fact to enable him to testify; but will leave the value of his testimony to be determined by the jury. 1 Greenleaf Ev. 601, § 461. What is the plaintiff’s “neighborhood,” whether one, or five, or ten miles, and the credit to be given to the'witnesses, near or remote, or the character he bears in the compass of one mile, or in the county in which he lives, are all questions, under the limitations above stated, to be considered and determined by the jury, in arriving at his general character. It is, lastly, insisted, that the court erred in giving instructions for the plaintiff, and refusing the first, fourth, and fifth instructions asked by defendant below. We think there is no error in the action of the court on these instructions, except the fourth instruction asked for defendant, which was refused. We think this should have been given, as words' spoken in the sudden heat of passion, or great provocation, cannot be regarded as so culpable as when spoken coolly and deliberately. On the whole case, we are clearly of opinion, that a new trial should be granted. Let the judgment be reversed, cause remanded, and a venire de novo awarded.