Wright v. Paige — 3 Trans. App. 134

Majority

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DANIEL S. WRIGHT v. THOMAS PAIGE.

Headnote

Slander — Words must impute Indictable Crime — Evidence, Credibility.

Words, to be actionable per se, must be such as to impute a crime for which the party would be indictable.

A bawdy-house is a common nuisance, apd the person keeping it may be indicted therefor; and to charge a person with keeping a whore-house is actionable per se, as it imputes the misdemeanor of keeping a bawdy-house. Slanderous words are to be construed according to their common acceptation, and not according to the particular understanding of those who hear them uttered.

To impeach the g-eneral credibility of a witness, it is not necessary that any one should swear directly that they would not believe the witness under oath.

Appeal from a judgment. The action is for slander. .The words charged, among other opprobrious epithets, were that the P] aintiff kept a whore-house. No special damage is alleged, nor does it appear that any was proved, or attempted to be proved. The Plaintiff proved the uttering of the words by the Defendant, and had a verdict in his favor.

It is urged that the words are not actionable per se. In Martin v. Stillwell ( 13 John. 275 ), the words were, “ Mrs. Martin kept a bawdy-house.” Held actionable. This ease is referred to and approved in Young v. Miller ( 3 Hill, 21 ), where Judge Bronson remarks that such a house is a common nuisance, and the person keeping it may be punished by indictment; and after citing some other cases, he adds : “ In all these cases the Court went upon the ground that the words imputed ‘ a crime involving moral turpitude,’ and for which the offender may be proceeded against by indictment.”

Words, to be actionable per se, must impute a crime involving moral turpitude, punishable by indictment. It is not enough that they impute immorality — moral dereliction, merely — but the offence charged must be also indictable. At one time it was supposed that the charge should be such as, if true, would subject the party charged to an infamous punishment; and it was so

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urged in Widrig v. Oyer ( 13 John. 124 ). But the Court declined so to hold. And in Martin v. Stillwell (supra), it was laid down that if the words imputed moral turpitude, and chargedan indictable offence, they were actionable, although the offence charged could not be punished by an infamous punishment. So in Alexander v. Alexander ( 9 Wend. 141 ), it was held sufficient if the words charged would, if true, subject the party to criminal punishment of any description. The case is cited, and the rule was approved and adopted in Young v. Miller.

The offence charged in Young v. Miller was but a misdemeanor, not a felony; but the words imputed a crime involving moral turpitude, and for which the offender might be proceeded against by indictment. Tire words were held actionable. In Bush v. Prosser ( 13 Barb. 221 ), a recovery was allowed in slander for charging the Plaintiff with keeping a bawdy-house, or house of ill-fame.

In this case the words charged are, that the Plaintiff kept a whore-house; and the complaint contains an innuendo alleging that the Defendant, by such charge, falsely and maliciously imputed to the Plaintiff the crime and offence of keeping a bawdy-house. The Court was requested to charge, and did charge, the jury, that in order to sustain the action they must find that the Defendant intended, by the words counted on and proved, to charge the Plaintiff with what was equivalent to keeping a bawdy-house for public prostitution. This certainly was going quite as far as the Defendant had any right to ask. The charge of keeping a whore-house is synonymous with a charge of keeping a bawdy-house or house of ill-fame.

The words are to be taken in their natural meaning, and according to common acceptation; in other words, according to their plain and natural import (Carroll v. White, 33 Barb. 615 , and cases there cited). By common acceptation, to keep a whorehouse is to keep a bawdy-house, or house of ill-fame. Indeed, to charge the former is equally opprobrious and more directly and unquestionably significant, if possible, than to charge the latter. It is a coarser expression, conveying the same idea. It is most

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clearly a charge of keeping a house for common prostitution; which is the precise definition of a bawdy-house. It is needless to say that^ such charge imputes a crime involving moral turpitude. This crime is also an indictable offence.

A bawdy-house is a common nuisance, and the person keeping it may be punishable by indictment (The People v. Jackson, 3 Denio, 101 ; The People v. Erwin, 4 id. 129 ; Young v. Miller, 3 Hill, 21 ). By the statute the offence is punishable with imprisonment at hard labor, and on bread and water (1 R. S. 638, §§ 1, 2, 10). It is therefore clear, on principle and authority,that the words charged in the complaint, and for which a recovery was allowed, were actionable. The objection that the complaint did not contain a cause of action, and the exception to the refusal of the Judge to charge the jury that the Plaintiff had not charged or proved a cause of action, were not, nor wras either, well taken.

The Defendant requested the Court to charge the jury, that inasmuch as the witnesses had not sworn that they understood the Defendant to mean by the words spoken that the Plaintiff kept a bawdy-house for public prostitution, the Plaintiff had failed to show actionable words. The Court properly refused so to charge. As has been said, the words were to be construed according to their common acceptation. It was for the witness to state them, and the circumstances under which they were uttered, and their import was for the Court and jury. It is ordinarily not admissible, on the trial of an action of slander, to inquire of the witnesses how they understood the charge (Gilson v. Williams, 4 Wend. 320 ; Van Vechten v. Hopkins, 5 John. 211 ). The Court decided correctly in refusing to charge as requested.

It seems that an attempt was made to impeach a witness produced by the Defendant, by whom he sought to prove a justification of the slander. In fact, no justification of the slander whatever was shown by her, and the evidence was entirely immaterial on that issue. But it was not objected to, and, if credible, bears, perhaps, on the Plaintiff’s character, and in that way was of some

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importance on the question of damages. I will, therefore, examine the exceptions interposed to the ruling- of the Judge on that branch of the case, without deciding, however, that the evidence was admissible, had it been objected to.

On the question of impeachment, evidence was given showing that the general moral character of the witness was bad, and that her general character for honesty and integrity was bad; also that she was reputed to be unchaste, and to possess a disposition to steal; and that she kept a place for the sale of liquors, which was the resort of vile characters. The witnesses were not asked whether they would believe her under oath. Uo evidence was offered to sustain the witness, nor was any objection taken to the sufficiency or completeness of the impeaching testimony until the summing up by the counsel to the jury, when it was insisted that the impeachment was ineffectual, inasmuch as no one had sworn that he would not believe the .witness under oath. The Court charged the jury that they should take into .consideration the manner of the witness when testifying; the nature of her evidence, whether or not consistent, and also the evidence of the witness called to impeach her general moral character, and determine whether they would believe her statement; and that it was not necessary, under the circumstances of the case, in order to impeach her, that the witnesses who testified to her general moral character should have been asked whether they would believe her under oath. To the latter clause óf this charge the Defendant’s counsel excepted, and requested the Court to charge that, inasmuch as it had not been proved that the witness by whom her character was shown to be bad would not believe her under oath, she was not impeached, and that the impeaching testimony in that behalf was of no force. The Court declined so to charge. The learned Judge was manifestly right, both in his charge an'd refusal.

As to the charge, it was not necessary, under the circumstances of the case, to ask the impeaching witnesses whether they would believe her under oath, if indeed it be necessary under any circumstances, for the purpose of a successful impeachment.

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The attention of the jury was called to the conduct of the witness while under examination; her manner of giving evidence; its probability or consistency, from which we are to infer that these were proper subjects of remark; especially must wre so infer, as there was no exception to this part of the charge. If her conduct and manner of testifying were insincere or reckless, and her statements improbable and contradictory, this would be enough to authorize the jury to discredit her. Circumstances attending the examination of a witness may, without countervailing proof, become so overwhelming as utterly to destroy his evidence.

It was not necessary, therefore, to the impeachment of this witness that another should swear that he would not believe her under oath; nor was it any the more necessary for the reason that several witnesses had also sworn that she was of notoriously bad moral character.

As regards the request to charge that the witness was not impeached, because it wras not proved that the persons by whom her moral character was shown to be bad would not believe her under oath, it is sufficient to say that she stood impeached, perhaps, by other evidence than that given by these witnesses. At any rate, there was other evidence tending to her impeachment, and hence it would have been improper to charge as requested. As part of the same proposition, the judge was requested also to charge that the impeaching testimony in that behalf had no force. The request must stand or fall as an entirety, and if any part of it was improper, the judge was right in rejecting it. A proposition on which a judge is asked to charge must be good in all its parts, both as to the law and facts, or he may refuse to give the instruction asked for; and he may do so without qualification (Daughty v. Hope, 3 Denio, 594 ; same case on appeal, 1 Comst. 79; Zabriskie v. Smith, 13 N. Y. Rep. 322 ; Cronk v. Canfield, 31 Barb. 171 ; Haggart v. Morgan, 5 N. Y. Rep. 422 ; Magee v. Badger, 30 Barb. 246 ; Jones v. Osgood, 6 N. Y. Rep. 233 ; Van Kirk v. Wilds, 1 Barb. 520 ). In this view, therefore, the learned judge very properly declined to charge as requested.

But suppose the impeachment to rest solely on the evidence of

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those persons by whom the moral character of the witness was proved to be reputedly bad, was the impeaching testimony 11 of no force ” without showing further, by those persons, that they would not believe the witness under oath ? On the question of general impeachment, the credibility of a witness is to be determined from general character. After one has so conducted in community that he has earned the reputation _of being a person of notoriously bad character, he is open to discredit in a court of justice. This is the common sentiment of mankind. But the point here is as to the kind and extent of proof necessary to the submission of the question to the jury, in case of an attempted general impeachment. The mode of establishing a general impeachment of a witness is by an examination into his character— his moral standing in community. The inquiries should be made of his neighbors, or those acquainted with his reputation and standing. An inquiry, however, is not allowed as to any particular offence, species or class of crimes or immoralities. As was said in Bakeman v. Rose ( 18 Wend. 146 ), you cannot inquire whether the witness has the general reputation of being a thief, prostitute, murderer, forger, adulterer, gambler, swindler, or the like; although each and every of such offences, to a greater or less degree, impairs the moral character of the witness, and tends to impeach his or her veracity. But the inquiry must be general in its scope and tendency. What should be the question in such case, both as regards substance and form, has often been matter of grave discussion. In Phillips on Evidence (see text), the rule is stated thus : The regular mode of examining into the general character of a witness is by inquiring of the witnesses who are called to impeach it, whether they have the means of knowing his general character, and whether with such knowledge they would believe him on his oath. In Oowen and Hill’s notes we find it said, that in general the proper question is whether the discrediting witness knows the general character of the witness sought to be impeached, in respect to truth, among his neighbors; and what that character is — whether good or bad. Greenleaf lays down the rule thus: The regular mode of examining into gen

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eral reputation is to inquire of the witness whether he knows the general reputation of the person in question among his' neighbors, and what that reputation is. Swift, in Ms treatise, remarks: The only proper question is whether he knows the general reputation of the witness, in point of truth, among his neighbors, and whether it is good or bad. Starlde says : The only proper question is whether he would believe him under oath. It has been held that the question may be asked, what is the general character of the witness, in the neighborhood where he resides, as a man of truth; and what is his general character for truth and veracity ; alsp, what his general moral character is. On looking into the books, it will be found that the Courts have, first and last, given sanction to questions in each and every of the forms above stated or suggested. Hot that either or all of them were the only ones which might be put, but that such questions were proper, both in form and substance, to be asked of the discrediting witnesses. It is well settled, too, by numerous decisions, that in addition to any or all of these questions, the witness may be asked whether he would believe the person, whose credibility is attacked, on oath. Green-leaf, after stating the proper mode of examination to be, to inquire of the witness whether he knows the general reputation of the person in question, among his neighbors, and what that reputation is, says that in the English Courts the course is further to inquire whether, from such knowledge, the witness would believe that person upon his oath. But he adds, “in the American Courts the same course has uot been pursued; but its propriety has of late been questioned, and perhaps the weight of authority is now against permitting the witness to testify as to his own opinion.” It is admissible, however, in this State, as in England, to superadd to other questions the inquiry whether the witness, from his knowledge of the general character of the person, would believe him under oath. But, as was remarked by the counsel in this case, the great struggle has been to induce the Courts to allow this question to be put. It is now held admissible, but it is not, as I am aware, absolutely essential to a successful impeachment. The decision in Gilbert v. Sheldon ( 13 Barb. 623 )

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does not reach this case, although I think the argument of the learned judge who delivered the opinion of the Court may cover it. There the question put went' merely to general character, not to general moral character, and this distinction was marked and commented on by the learned judge. If the decision in that case is to the extent that there cannot be an effectual impeachment of a person without proving by the discrediting witnesses that they would not believe him under oath, I am unwilling to follow it.

If a person is shown to be of notoriously bad moral character, he is certainly a most unreliable witness, and, in my judgment, it then becomes a proper matter for the jury to determine whether they will credit his statement, without the further testimony from the discrediting witnesses that they would not believe him under oath. If they should so state, it would add very little force, if any, to the other evidence. -In the case at bar, a female witness is shown to be of bad character — reputed to be dishonest, unchaste, wanting integrity, untruthful, thievish, and a keeper of a resort for vile characters; and the Court is asked to charge the jury that she stands before them, as regards the question of general impeachment, a perfectly fair witness — in the exact language of the request, “ that the impeaching testimony in that behalf was of no force;’’ and for the reason, simply, that the witnesses were not asked whether they would believe her under oath. The proposition is contrary to the dictates of reason and propriety — simply absurd.

After impeaching witnesses are shown to be acquainted with the general moral character of the person whose credit is assailed, and they declare it- bad, the question of credit is then, in my judgment, for the jury, under proper comments from the Court, without any inquiry of the discrediting witnesses as to whether they would believe him under oath.

In such cases the jury ought not to be precluded from drawing fair and reasonable inferences from the evidence.

I am satisfied that the record in this case is free from error, and that the judgment should be affirmed.

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Judgment affirmed.

The Court adopt the opinion of Judge Bockes in the Court below, and affirm the judgment.

JOEL TIFFANY,

State lleporter.

Cases cited

Alexander v. Alexander 9 Wend. 141 N.Y. Sup. Ct. p. 135
Bush v. Prosser 13 Barb. 221 N.Y. Sup. Ct. 1852-06-07 p. 135
Carroll v. White 33 Barb. 615 N.Y. Sup. Ct. 1861-05-14 p. 135
Gibson v. Williams 4 Wend. 320 N.Y. Sup. Ct. p. 136
Cronk v. Canfield 31 Barb. 171 N.Y. Sup. Ct. 1857-01-05 p. 138
Magee v. Badger & Potter 30 Barb. 246 N.Y. Sup. Ct. 1859-12-05 p. 138
Gilbert v. Sheldon 13 Barb. 623 N.Y. Sup. Ct. 1852-09-14 p. 140