Van Ankin v. Westfall — 14 Johns. 233

Majority

p. 233

Van Ankin against Westfall.

Headnote

An action of slander *ies for charging the plaintiff with a crime committed in another state, although the plaintiff would not be amenable to justice intliis state. An action of slander lies for charging the plaintiff with a crime the pro. secutmn of which has boon barred by the statute o( limitations ; and in such action, tue defendant may justify and prove the truth of his allegation, notwithstanding the evlm'nal prosecution may be barred. The truth of the words spoken i* not admissible in mitigation of damages.

THIS was an action of slander tried before Mr. Justice Platt, at the Orange circuit, in September, 1816.

The words charged in the three first counts of the declaration, and proved, on the trial, to have been spoken, 'by the de fendant, of the plaintiff, were, the plaintiff is a thief, and has stolen fifty dollars in cash from Jacob De Witt. These words were spoken in this state, -but had reference to a transaction which took place in Pennsylvania, where Jacob De Witt resided. The defendant offered to prove, in mitigation of damages, that the plaintiff, before speaking the words, was in company.with a number of other persons, and had been at the house of De Witt, in Pennsylvania, and that a sum of money had, at that time, been taken from De Witt, who charged the persons who had been at his house with taking it; that • those persons agreed to indemnify De Witt; and that the plaintiff, in consequence of such agreement, paid his proportion of the loss which De Witt had sustained. This testimony was overruled by the judge. The defendant then moved for a nonsuit on the ground that the words, as proved, were not actionable, not charging the plaintiff with the commission of any crime, or misdemeanour,

p. 234

for which he was liable to he indicted and punished in this state ; but the judge deuiod the motion.

The case was ~suhmitted to the court without argument.

This is an action of slander, charging the for saying of the plaintiff, 11 He is a thief, and has stolen fifty dollars in cash from Jacob De (VittIt appeared, in proof, that Jacob De Wiil resided in the state of Pennsylva-nia ; and that the transaction referred to by the defendant took place in that state. The plaintiff’s right to sustain the action was objected to, because no crime was alleged against him for which he could be punished here. This objection was proper-ly overruled. Although the plaintiff might not be amenable to our law, had the charge against him been true ; yet, from any thing that appears, he might have been demanded as a. fugitive from justice, and have been punished, if guilty, in the state of Pennsylvania. But the right of the plaintiff to sustain the does not depend upon the question, whether he was liable to be prosecuted and punished for the crime charged against him. As when the statute of limitations has run against the ■ .criminal prosecution, it is still slander to charge the party with the offence; and the party making the charge would have a righi to justify, and show the truth of his allegation, the criminal prosecution might be barred. The offered in mitigation of damages was properly overruled. The testimony was to show the truth of the charge alleged against the plaintiff, and was not admissible under the general issue, in justification; and it is a well-settled rule that the truth of the charge is not admissible in mitigation of damages. The •motion for a new trial must, accordingly, be denied.

Motion denied.