Bynum v. Miller

MR. Cheié Justice Neil delivered the opinion of the Court. In actions for slander and libel, the general rule in Tennessee, contrary to what seems the current of authority elsewhere (25 Cyc., 496-498), is that statements of the defendant, made subsequent to those on which the suit is founded, are inadmissible in evidence against him. Saunders v. Baxter, 6 Heisk. (53 Tenn.), 369, 388-392; Howell v. Cheatham, Cooke (3 Tenn.), 247-249; Robinson v. Baker, 10 Lea (78 Tenn.), 402, 406; Russell v. Farrell, 18 Pick. (102 Tenn.), 248, 251, 52 S. W., 146. In Witcher v. Richmond, 8 Humph. (27 Tenn.), 473, 475, 476, a distinction was taken to the effect that such testimony was competent for the purpose of showing an admission of the defendant that he had used the words complained of, and his meaning in uttering these words. In the case before us, the trial judge made an additional distinction, and we think, correctly. The defendant was charged with having used, of and concerning the plaintiff below, the following language, “We have caught Cecil stealing.” Again, “I commenced to watch him, and found him to be the damndest rogue I ever saw. ’ ’ When sued, Bynum admitted the use of the words, and pleaded justification. It was in evidence that Cecil Miller had for a long time been accustomed to stay around the store of the Bynums and sell goods there from time to time, though not regularly employed; sometimes making [595] only occasional sales, and apparently, nnder sneh circumstances, without compensation. The testimony admitted over the objection of Bynum, defendant below, consisted of statements made by him to certain witnesses, that Cecil Miller had been stealing from the firm of Bynum Bros, for aboiit eighteen months or two years, and had stolen “from $1,500 to $2,000 worth of stuff.” It was in evidence that no effort had ever been made by Bynum to cause the arrest of Miller. The trial judge, in admitting the evidence complained of, instructed the jury that these subsequent statements could be looked to only for the purpose of reflecting on the credibility of the defendant and his brother Anse Bynum as witnesses. Continuing his honor said: “It is introduced here as an alleged contradictory statement .of what he (Anse Bynum) said here in his testimony as to what plaintiff had stolen, and is only to' be weighed by you as it may reflect upon the credibility of that witness, and as to what weight the testimony of Anse Bynum is entitled to.” Substantially the same ruling was made as to similar statements alleged to have been made by the defendant W. H. Bynum. The same instruction was repeated, in substance, in the charge, with the further direction, in accordance with our cases referred to supra, that these subsequent statements could not be looked to for the purpose of showing malice. There was no error in the action of the trial judge in admitting the evidence referred to, limiting it as he did. [596] Other points are disposed of orally. They were all correctly adjudged by the court of civil appeals. In overruling all of the errors assigned in that court, and in affirming the judgment of the trial court in favor of the plaintiff below, there was no err.or, and the judgment of that court is therefore in all things affirmed.