Barthelemy & De Bouillon v. People — 2 Hill & Den. 248

Majority

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Barthelemy & De Bouillon vs. The People.

Headnote

Where, after conviction upon an indictment in a court of general sessions, the defendants were sentenced to imprisonment for a specified period, and each to pay a fine, &c.; held, not a ground for refusing to reverse the judgment on error, that, from the face of the record, it appeared the defendant’s term of imprisonment had expired ; especially as it was not shown in any way that the fines had been satisfied or cancelled of record.

In general, the intendment of law is that a party will be damnified by an erroneous judgment'standing against him unreversed ; and the payment or satisfaction of • such judgment, is no bar to a writ of error thereon, even in a case where no restitution can follow the reversal.

Whether a judgment of nonsuit, no costs being awarded, is an exception to the above rule, qvere. {And see note (<?.).)

A libel containing general charges against an individual, of “ hardness toward the poor,” “ dissoluteness of morals,” &c., purporting to be conclusions from instances of bad conduct previously narrated in the publication, cannot be justified by proof of other instances not specified by the writer.

Semble, in a criminal prosecution for a libel, mere naked admissions made by the party libelled, are, in general, incompetent evidence against the people, even to establish facts tending to a justification. Otherwise as to conversations or declarations which are a part of the res gestee.

To show a witness’ incompetency from a defect of religious belief, his conversations or declarations on religious topics are admissible.

Where the state of mind, sentiment or disposition of a person, at a given period, become pertinent topics of enquiry, his declarations and conversations, being a part of the res gestee, may be resorted to. {See post, note (A).

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Where, on the trial of a cause, the proofs have once been closed, the refusal of the court to allow them to be opened with a view to further testimony, cannot form the subject of a bill of exceptions, it being matter resting entirely in discretion.

Semble, that on error brought by iwo of three defendants jointly convicted of a conspiracy to publish a libel, the former have the right to avail themselves of an erroneous rejection of evidence tending to exculpate their alleged co-conspirator as having acted from “ good motives and for justifiable endsfor proof of his innocence may enure to their benefi.t.

It is no defence to a prosecution for publishing a libel, that the matters contained in it are true, unless it be further shown that tho publication was made from “ good motives,&c.

A conspiracy to publish what is true of an individual is not criminal, if the parties act from “ good motives and for justifiable ends.'’

Semble, in a prosecution for conspiracy to publish a libel imputing certain moral offences to a clergyman, after evidence has been given tending to show the truth of the imputations, the character of the accused for good morals, great piety, or a laudable aversion to hypocrisy in general, may be shown with a view to the question of motive.

But a mere proposition to prove good character, without specifying what kind of character is intended, is too vague and indefinite, and may properly be rejected.

On error from the general sessions of the city and county of Nevv-York. Barthelemy and De Bouillon, plaintiffs in error, together with one John Collon, were convicted before the general sessions of the city and comity of New-York, in June, 1840, on an indictment, the first count of which charged a conspiracy to publish a libel with a view to extort money from the Rev. A. Yerren, a clergyman in the city of New-York, and the second count charged the simple publication of the libel. The court thereupon sentenced Barthelemy to imprisonment in the penitentiary for nine months, and De Bouillon to the like imprisonment for one year. "They also imposed a fine of $250 upon each; and "sentenced them to commitment till their fines should be respectively paid.

In the first count of the indictment the libel was described in a general way, as a book calling Mr. Yerren a hypocrite, slanderer, &c., and imputing to him certain immoralities, such as adultery, seduction, hardness toward the poor, &c. The second count set forth copious extracts from the book, which detailed with great particularity the

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conduct and language of Yerren in respect to his parishioners and others, at various times and places—calling him an impostor, and concluding thus—“We wished to establish four principal points; 1. Hardness toward the poor; 2. Dissoluteness of. morals; 3. Immorality in his principles ; 4. Habits of vice and calumny. We think we have accomplished this,” &c. The book was entitled—“ Rev. Anthony Yerren, Pastor of the French Episcopal Church of the Saint-Esprit at New-York—Judged by his works.”

At the trial, the publication, distribution and general sale of the book, were shown; and evidence given tending to prove the conspiracy charged in the first count. In respect to some of the charges in the libel, no attempt to prove their truth was made. The defendants below, however, endeavored to show that Yerren had been guilty of writing and sending anonymous letters, of a slanderous and obscene character—that he had acted with hardness and rudeness toward certain of his parishioners, viz. Mr. and Mrs. Barbelet, in withholding their due share of a charitable fund provided by his congregation and placed under his control—and that he had seduced and been guilty of criminal intercourse with the wife of De Bouillon. Considerable evidence was addressed to the jury, tending, on the one hand, to establish these charges, and on the other, to disprove them. In the course of the trial, the defendants’ counsel proposed to en-quire of one Helie, as to a statement or declaration made to him by Yerren. This was excluded on the ground that Yerren had not yet been examined as a witness. The witness was then asked by defendants’ counsel, what conversations he had had with Yerren, relative to American ladies'? This also was excluded, on the ground of its being a general enquiry into matters not set forth in the libel. The defendants’ counsel next enquired of the witness, what he had heard Yerren say in regard to his motive in procuring the charge of his church in New-York? On being called upon to disclose what was expected to be proved by the answer to this question, the defendants’ counsel said, they intended to

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show that Yerren avowed his motive was to make money; and thus lay the foundation for inferring that he was a hypocrite. The enquiry was objected to and overruled. The defendants’ counsel then put the following questions to the witness: Did not Mr. Yerren slate to you that in preparing his sermons he had purloined from Yol taire, and that if the members of his church knew it they would turn him out of doors ? Have you ever heard Mr. Yerren call his father in law a d—d old rascal ? Have you ever heard Mr. Yerren advise any person to buy goods and then cheat the seller out of his pay? Did Yerren admit to you that he had had intrigues with ladies in France, or Ferney ? These questions were severally overruled; and the defendants’ counsel next asked the witness, whether Yerren had admitted himself to be an impostor ? This was excluded, on the ground of its not being coupled or proposed to be coupled with any charge contained in the libel and therein referred to as establishing the character of an impostor. The defendants’ counsel then proposed to enquire of the witness, if Yerren had not admitted that he had written or intended to write anonymous letters ? The object of this enquiry, as avowed, was, to establish thé general charge in the libel of “Habits of vice and calumny.” It was overruled on the ground, that the general charge referred to, purported to be a deduction from certain facts previously detailed in the libel, and that the question pro' pounded was not confined to those facts. The witness was then asked by the defendants’ counsel, whether Yerren had not admitted that he had charged one of the vestrymen of his church with stealing money from him ? This was also objected to and overruled.

The counsel for the defendants, for the purpose of showing the good motives of Barthelemy in making the publication in question, proposed to prove that he was a man of literary habits. This was objected to, and overruled; whereupon the defendants’ counsel, for the like purpose, proposed to show that Barthelemy was a man of good character—that he had sustained a good character in

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France, and subsequently in this country; but the court excluded the evidence. The defendants’ counsel next proposed to prove the four general conclusions stated in the book in question as the “ principal points” thereby sought to be established, viz: 1. Hardness toward the poor ; 2. Dissoluteness, &c. ; 3. Immorality, &c. ; 4. Habits of vice, &c. This they avowed their intention of doing—not by evidence of the circumstances detailed in the book as tending to those conclusions—but by proving other facts not mentioned in the book. The evidence was objected to and overruled. The defendants’ counsel then offered to prove the good character of Collon; which offer was also overruled.

In the course of the trial, John Granger was sworn as a witness on the part of the people, and gave material testimony against the defendants. After the testimony was closed by the consent of all parties, the court adjourned for the day, reserving the right of Collon to examine one Felix, should he appear before the summing up commenced. On the court assembling the next day, De Bouil-

lon’s counsel moved to open the proofs with a view to impeach the character of Granger, upon. an affidavit of De Bouillon that Granger’s testimony was untrue and a surprise upon him. Verren’s affidavit was read in opposition to De Bouillon’s, and the court overruled the motion.

To each of the several decisions above mentioned, the defendants’ counsel excepted. They also excepted to the recorder’s charge to the jury, and to his refusal to charge as requested; but as these exceptions were deemed clearly unfounded, and were apparently not much relied on by the counsel who argued the case at bar, it is deemed unnecessary to present the matters to which they related, in detail. After judgment in the court below, the defendants De Bouillon and Barthelemy brought error to this court.

H. M. Western & C. De Wilt, for the plaintiffs in error,

insisted that the court erred in denying the motion to admit

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testimony impeaching the character of Granger. The discretion which a court has in this respect is not an arbitrary, but a legal discretion, and it must be soundly and judiciously exercised. An abuse of discretion, where a discretionary power exists, or a refusal to grant relief under circumstances clearly entitling a party to relief, is error, and constitutes good matter for an exception. In the course of the discussion on this point, the counsel cited and commented on Mercer v. Sayer, ( 7 Johns. Rep. 306 ,) Clark v. Vorce, ( 15 Wend. 193 ,) and Cowen & Hill’s Notes to Phil. Ev. pp. 717, 718.

They next insisted, that the court erred in rejecting the offered testimony as to the good character of Barthelemy. It was competent under the count charging a conspiracy to extort money, as a circumstance to rebut the idea of his having acted from the motive imputed. It was also competent under the count for publishing the libel in question. We attempted to justify the libel j and a fair question was raised by the evidence whether the attempt had not been successful. Enough was proved at the trial to warrant the submission of that question to the jury. Indeed, non constat that the jury were not entirely with us on that point, and found the defendants guilty because, though they had published the truth, it had not been done from “good motives, and for justifiable ends.” Truth itself may be libellous, if published from bad motives, and for purposes which the law condemns. In this view, therefore, the good character of Barthelemy would have come powerfully to his aid, and he had a right to invoke it. But the rule now is, that good character may always be shown by the prisoner in a criminal prosecution. Its weight and effect are matters for the consideration of the jury. We also submit that the court erred in rejecting evidence of the character of Col Ion. There could have been no conviction of any of the defendants for a conspiracy, unless Col Ion’s guilt was establishéd; and whatever tended "to exculpate him, was material for the rest.

Again: the court erred in ruling that the defendants

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were not at liberty to prove the truth of the four general conclusions stated in the book without reference to any facts particularly- detailed therein. The writer says: “ We wish to establish four principal points, viz; 1. Hardness toward the poor; 2. Dissoluteness, <fcc.; 3. Immorality, &c.; 4. Habits of vice and calumny.” It is submitted that these general conclusions constitute the very gist of the libel. To establish them, was the whole design of the book; and the writer expressly avows this. We therefore contend, that any thing tending to shew .these charges true, should have been admitted in justification. Moreover, it is plain that the writer in these general charges or conclusions was speaking of habits, prevailing dispositions or motives. It is a perversion of the entire scope and tenor of the book, to assume that he designed to produce conviction only of the instances of guilt detailed. On the contrary, this was evidently the smallest part of his object. He narrates an instance or two, and then alludes to others which are not particularized. His aim was not at facts merely, but at motives and thoughts; not at isolated instances, but habitual practices. The .number of facts related, tending to either one of the general conclusions is very small—not enough, if taken by themselves, to shew a habit—and yet the habit is charged; indeed, it is the main charge. Suppose, for illustration, A. publishes of B. that he is guilty of habitual lewdness—that he is lascivious in disposition and heart; and for proof of this charge, A. says, that “ among many other instances which I might cite and can establish, I select two, the least offensive of all”—specifying and describing these two, and concluding with the general charge with which he commenced. Can it be pretended that A., if prosecuted, would be confined in his justification to the two instances narrated 1 We think not.

The counsel further contended, at considerable length, that the court below erred in overruling the several questions put to the witness Helie. " They submitted, moreover, that there was error in the charge to the jury, as well as in the refusal to charge.

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J. R. Whiting, (district attorney,) for the people,

insisted that the writ of error could not be sustained in this case, inasmuch as, on the face of the record, it appeared the defendant's term of imprisonment in the penitentiary had elapsed, and so the sentence pronounced by the court below was satisfied. He also controverted in detail the several propositions advanced by the counsel for the plaintiffs in error. As the main drift of his argument, however, was substantially in accordance with the views expressed in the opinion of the court, it is thought proper not to insert it.

By the Court,

To the preliminary objection raised by the district attorney, viz. the writ of error must fail, because it appears on the face of the record that the term of confinement in the penitentiary to which the plaintiffs in error were sentenced has elapsed, and so the sentence passed upon them by the court below satisfied, there are two answers. They were not only sentenced to imprisonment, but each was also fined ; and it is not apparent on the record that the fine of either has been paid. If it were necessary, therefore, to warrant their calling on this court for a reversal, that they should show the immediate pressure of an unsatisfied judgment upon them, we see enough in the fines uncancelled of record. But the payment or satisfaction of an erroneous judgment against a party, can never be allowed as a bar to a writ of error, even in a case where- we must see that no restitution could follow the reversal as a legal consequence, and no costs be recovered. An erroneous judgment against him is an injury per se, from which the law will intend he is or will be damnified by its continuing against him unreversed. There may be exceptions to the rule, as in case of a nonsuit, no costs being awarded; (Monell v. Weller, 2 John. R. 8, 9;)^[1] but a judgment on the merits is

(a) (a) In the case cited, the plaintiff in error was nonsuited before a justice of the peace, and, as was held, erroneously; but as no costs were awarded against him, the court refused to interfere, either by way of affirmance or *256 reversal, saying, that the judgment below was incomplete. They speak also of their inability to restore the party to the state he was in when the nonsuit was granted; and that the object of the plaintiff in error was merely to throw a bill of costs on the defendant. In a case immediately succeeding the above, in the same volume, (Smith v. Suits, 2 John. Rep. 9 ,) the court held, that a certiorari will lie to reverse a justice’s judgment of nonsuit when costs are awarded. These decisions have sometimes been interpreted as maintaining the general proposition, that error will in no case lie to reverse a judgment of nonsuit, provided the plaintiff has not been injured by being subjected to the payment of the defendant’s costs. A doctrine the direct contrary of this seems to have been applied in the subsequent case of Lovell v. Evertson, ( 11 John. Rep. 52 .) There, the action was tried in the common pleas, and the plaintiff was erroneously nonsuited. On error brought, the judgment was reversed, though there was no award of costs upon the record in the court below against the plaintiff; and this, upon the express ground, that the plaintiff in error was aggrieved “ by being defeated of his right of action in that suit, and of his costs for prosecuting the same.” Otherwise, where the plaintiff has submitted, to a non-suit in the court below. (Evans v. Phillips, 4 Wheat. 73 . See also Van Wormer v. The Mayor &c. of Albany, 18 Wend. 169 , 172, 173, per Walworth, Chancellor; and per Butter, J. in Kempland v. Macauley, 4 T. R. 430, 437.)

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conclusive between the parties, and; if not by direct, it may be followed by remote consequences actually injurious. In some cases of libel, an erroneous conviction at the suit of the people might, unless reversed, by forever concluding the defendant, materially affect the profits to be otherwise derived from the salo of a valuable literary work. There is no doubt, therefore, that the plaintiffs in error have a right to demand a consideration of the exceptions which they took to the proceedings of the court below.

The exception to the charge of the recorder was clearly ill taken; and so of the exception that he refused to charge as requested by counsel. And to some offers of evidence an obvious objection was suggested by the court below. The proposition, for instance, to establish hardness of the plaintiff towards the poor, dissoluteness in his morals, immorality in his principles, and habits of vice and calumny, by instances of conduct not detailed or alluded to in the book, were inadmissible, for the reason that all these were imputed as conclusions deducible from particular instances enumerated and arranged in the book with a

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view to the establishment of those conclusions. Most clearly the defendants below had no right to depart in their proof from the circumstances they had set forth. They say, for instance, Yerren wrote and sent anonymous letters of a certain character; therefore, he was 'guilty of calumny and obscenity. To allow proof of other instances, such as defamatory and obscene conversations, would be to violate - the well settled rule, that to justify a slander, charging a specific oifence, you shall not be permitted to prove another, though of the same character.

Upon the same principle, I am also inclined to think, the court below were right in excluding the testimony which was offered, having a tendency to show that Yerren was an impostor. True, he is called an impostor in the book, not, as in other instances, by way of express conclusion from the circumstances; but the charge amounts to that in fair construction.

Several of the questions proposed to be addressed to Helie were, therefore, improper^ as having no relevancy to instances stated in the book, while others were entirely irrelevant, in all respects; and I think the whole were properly excluded on one or the other of these grounds.

There is, I apprehend, also another ground on which several of those questions were inadmissible. Some of them respected the naked admissions of Yerren—such as that he was an impostor, that he was in a particular situation at a certain place, that he had intrigues with ladies at France and Ferney, &c. The admissions were not in themselves facts, going to establish the vicious attributes imputed by the book or any others. In re■spect to such questions, it seems to me, therefore, the objection of the district attorney comes with great force, that they sought for naked declarations. Obscene or slanderous coversations, serious arguments against the truth of revelation, and the like, might have been pertinent ;^[2] as we receive

(b) (b) In most cases, where the state of mind, sentiment, or disposition of a person at a particular period, become pertinent topics of inquiry in the course of *258 legal proceedings, resort may, and frequently must be had to his declarations and conversations. These seem to come in, under such circumstances, as part of the res gestee. An obvious instance is the case of alleged insanity. (See The United States v. Sharp et al., 1 Pet. C. C. Rep. 118; The State v. Scott, 1 Hawk’s Rep. 24.) The necessity of sometimes allowing a resort to this species of evidence, even as in favor of the declarant, was recognized and illustrated in Darby's adm’r, &c. v. Rice, (2 Nott & McCord, 596.) “ For instance,” say the court, (id. 599,) “ if it should become a question whether the party knew the multiplication table, it could only be established by hearing him repeat it: what he has said therefore must be resorted to, to prove that he knew it.” In lAghtner v. Wike, (4 Serg. Rawle, 203, 206, 207,) a witness swore that the testator had made confidential communications to him relating to the family affairs of the former; and the testator’s declarations, by which he showed suspicion of the witness’ honesty, were admitted in reply. These, said Tilghman, C. J. were acts—not merely hearsay. They showed a want of confidence, and the improbability that family concerns of a delicate nature would have been committed to the witness. So, in many cases, declarations of a person sworn as a witness may be given in evidence as evincing hostile and malicious feelings toward the party against whom he testifies, with a view of shaking his credit. (See Cowen & Hill’s Notes to Phil. Ev. 729, -730, 764, 765, and the cases there cited.) It has been suggested that where a person confesses a crime for which another stands indicted, and surrenders himself to justice, such confession would be admissible in favor of the person indicted. (3 M.cCord's Hey. 232, note, pi. 12.) But quere. In Commonwealth v. Chabbock, ( 1 Mass. Rep. 144 ,) such a confession was held mere hearsay, and inadmissible.

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arguments in favor of atheism, coming from a witness, to show his incompetency from defect of religious principle.^[3] Such declarations are a part of the res gestee. But I am not prepared to concede that, when the people have instituted a criminal prosecution, they lie, in any case,- at the mercy of mere naked admissions made by the party injured, when they do not introduce him as a witness.

Whether farther testimony should have been heard in the cause after the proofs had been closed and the court below adjourned, touching Granger’s character, or any other question in the cause, was so entirely a matter of discretion with the court, that the defendants could not have been entitled to a bill of exceptions under any circumstances, on the ground of the court’s refusal to open

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the proofs. (Philadelphia & Trenton Rail-Road Company v. Stimpson, 14 Pet. 448 , 463.)^[4]

But there was an offer to prove the good character of both Barthelemy and Collon. And it is truly said, by the counsel for these plaintiffs in error, that in answer to the first count, which was for a conspiracy, they have a right, if such be the fact, to complain that proper testimony has been rejected not only in respect to themselves personally, but their supposed co-conspirator. Proof of his innocence might have enured as proof of theirs. The offer, however, was the same in respect to Barthelemy, and whether offered as an answer to the charge of conspiracy or libel, I should think it by no means clear that character might not have been material in the view stated when the offer was made. The defendants below had a right to assume, for the purposes of the offer, that the jury would think the truth of some portion of the libel had been established; but that was not a full answer to either count. In order to make out a case of complete innocence, good motives and justifiable ends in the publishers were necessary, of which the jury are, by the constitution, made judges. (Art. 7, § 8, 1 R. S. 45, 2d ed.) Publication of the truth, and even conspiracy to publish the truth, from good motives and for justifiable ends would not be criminal; and, a certain line of character, as for good morals, great piety, or a laudable aversion to hypocrisy and imposture in all men, might form an important item in the defence against such a prosecution as this. But unfortunately for the plaintiffs in error, the offers came far short of any thing like what I have supposed. They were simply to show good character, not for ■ any moral attribute whatever, nor even a general character for good morals. The offers might have been intended, for aught we can see, of good character for skill in the defendants’ profession or calling. They were so indefinite as not to indicate a sort of character which could be relevant to the object avowed.

(d) (d) See Ford v. Niles, ( 1 Hill, 300 to 302, and note (a).)

I

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The rule applicable to the case will be found with its il lustrations, in 1 Phil. Ev. 177, and the notes, Cowen & Hill’s ed.

I am of opinion, therefore, that none of the exceptions .were well taken; and that the judgment of the court below must be affirmed.

Judgment affirmed.

Cases cited

Clark v. Vorce 15 Wend. 193 N.Y. Sup. Ct. p. 253
Philadelphia & Trenton Railroad v. Stimpson 14 Pet. 448 SCOTUS at 463 p. 259