Turrill v. Dolloway — 17 Wend. 426

Majority

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Turrill vs. Dolloway.^[1]

Headnote

A publication charging an officer authorized to administer oaths, with affixing a jurat to an affidavit and certifying that the person who signed it was duly sworn, when in fact he was not sworn, accompanied with remarks imputing to the officer a gross violation of duty, is libelous, and is not justified by the mere proof that a jurat was thus affixed without administering an oath.

A jury are not authorized, in such a case, to say that a publication was intended merely to charge inadvertí nee, or omission by mistake to administer the oath.

This was an action for a libel tried at the Oswego circuit in June, 1845, before the Hon. Addison Gardiner, one of the circuit judges. The libel was in these words: “ To the public. We, the undersigned, inhabitants of the village of Oswego, take upon ourselves the responsibility of informing the public, that Joel Turrill, now a candidate for the office of member of congress, did, about the first of March, 1830, put his official signature as first judge of the county of Oswego, to a statement in writing, in the form of an affidavit, and stated under his hand that the person who signed it was duly sworn, when in truth the said person was not sworn at all; and we further say, that the said paper, purporting to be an affidavit, was intended and used for the purpose of preventing the re-appointment of the present collector of the customs for the port of Gswego, and that the said Joel Turrill did, about that time, make himself, secretly, as he supposed, busy in concerting measures to produce that result. We leave the public to judge, under the circumstances, whether Judge Turrill has not committed a gross violation of his oath of office, for the purpose of ruining a man whom he has long endeavored to injure, although lie belongs to the same political party with him- • [427] self.” It had the signature of the defendant and four other persons attached to it, and the defendant authorized its publication. On the trial of the cause, the defendant undertook to justify the publication, and proved that a paper in the form of an affidavit was drawn up about the 1st March, 1830, relating to some smuggling transaction which ought not to have escaped the vigilance of the collector of the customs at Oswego; that it was taken by M’ Nair, the person named in it as the deponent, to the lodgings of the plaintiff, who was then first judge of the county of Oswego, and shown to the plaintiff, who told M’Nair to sign it, which M’Nair accordingly did do, and the plaintiff then put the jurat to it and signed it officially as sworn to, although no oath was administered to M’Nair, who testified that nothing was said about his swearing to the affidavit; it occurred to him before he left the plaintiff that he had not been sworn to the truth of the affidavit, but he said nothing on the subject to the plaintiff. The paper thus certified, was forwarded to Washington to be used in preventing the re-appointment of the then collector.

The judge, at the request of the defendant’s counsel, charged the jury that if the paper charged to be libelous, merely intended to charge the plaintiff with inadvertence, or an omission to swear M’Nair to the affidavit by mistake,

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and such inadvertence or mistake had been proved, that then the defendant had justified and would be entitled to a verdict; the judge further directed the jury, that if the paper charged the plaintiff with official corruption, which it was their province to determine, then, in order to justify, the defendant was bound to prove the plaintiff guilty of such official corruption, and the proving a mere mistake or inadvertence would be no justification; that the justification, in order to be available to the defendant, must be as broad as, and co-extensive with the charge. The jury found a verdict for the defendant, and the plaintiff now moves for a new trial.

J. A. Spencer, for the plaintiff.

M. T. Reynolds, for the defendant.

By the Court,

There was a time when courts thought it a duty to understand words charged to be slanderous in the most mild and inoffensive sense—when they adopted unnatural and strained constructions of the language, for the purpose of proving that it did not necessarily, and with absolute certainty impute a crime. But that day has long since gone by, and the rule of common sense has become the rule of law on this subject. Judges and jurors now read the words in court, as they would read them elsewhere; they no longer resort to those constructions which make that language innocent in the halls of justice, which was full of calumny when spoken or published out of door. Words charged to be slanderous, are to be understood in their plain and popular sense; and the question is whether, when fairly construed, they appear to have been meant, and were calculated to convey the imputation of an offence, to those who heard or read them (10 Mod. 196; 2 T. R. 206; 9 East, 96).

It is impossible, I think, to read this publication without coming to the conclusion that the defendant intended to charge the plaintiff with corrupt misconduct in his office. This is the most natural and obvious meaning of the language, and it must have been so understood by every intelligent man who read the article. It charges that the plaintiff “ put his official signature, as first judge of the county of Oswego, to a statement in writing in the form of an affidavit, and stated under his hand that the person who signed it was duly sworn, when in truth the said person was not sworn at all.” Had the article stopped here, it might have been regarded as the mere assertion of a fact, without necessarily imputing the crime of malversation in office. The omission to administer the proper oath to the person who had subscribed the affidavit might have happened through mistake or inadvertence; and the words would not have been libelous, unless the defendant intended [429] they should be understood in a criminal sense. In what sense they were published, and how they were understood, would then have been questions of fact for the jury (12 Johns. R. 239; 5 id. 211; 4 Wendell, 320.)

But the article proceeds to impute a sinister motive to the plaintiff. It charges that “ the said paper, purporting to be an affidavit, was intended and used for the purpose of preventing the re-appointment of the present collector of the custom for the port of Oswego, and that the said Joel Turrill did about that time make himself secretly, as he supposed, busy in concerting measures to produce that result.” But this is not all. The accusers proceed, we leave the public to judge, under the circumstances, whether Judge Turrill has not committed a gross violation of his oath of office, for the purpose of ruining a man whom he has long endeavored to injure.” Nothing can be more clear than that the defendant intended to charge the plaintiff with certifying to a false fact from a bad motive. It must have been so understood by every person who read the publication. It would be an insult to the good sense of those who composed the paper, as well as the public, to whom it was addressed to say that nothing was intended beyond charging the plaintiff with having made a mistake in the discharge of his official duty. Why allege that the

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plaintiff had made himself" secretly busy in concerting measures to produce a removal”—why submit it to the public to judge whether the plaintiff had not “ committed a gross violation of his oath of office,” and that to “ for the purpose of ruining a man whom he had long endeavored to injure,” if they only intended “ the public” should understand that the plaintiff had omitted to administer the proper oath to the witness?

A charge that the plaintiff, through mere inadvertence or mistake, had omitted to swear the witness, would not be actionable, unless it were laid that the words were spoken or published ironically, and with intent to impute a crime (The Queen v. Dr. Brown, Holt, 425). And ivhenever the words are apparently innocent in their meaning, they can only be made actionable, if at all, by a distinct averment that they were published [430] and intended to be understood in a criminal sense (Andrews v. Woodmansee 15 Wendell, 232). Averments of this kind must be proved on the trial, and like all other questions of fact, must be passed upon by the jury. The rule is substantially the same where the words are of doubtful or equivocal import, and maybe understood either in a criminal or an innocent sense. The jury must say in what sense they were used. But in this case, the defendant did not charge that the plaintiff had omitted to swear the witness through mere mistake; nor did he stop at the naked fact that the witness was not sworn. He intended to leave no room for an innocent interpretation of the plaintiff’s conduct. He proceeds to suggest a motive for the action, which necessarily implies that it was done designedly; and then appeals to the public to say whether, “under the circumstances,” the plaintiff “ has not committed a gross violation of his oath of office,” and whether he has not done so “ for the purpose of ruining a man whom he has long endeavored to injure.” The words were plainly libelous in the sense of imputing to the plaintiff corrupt conduct in his office, and the judge should have so instructed the jury. There was no ground for leaving the question to them as one of mere mistake or inadvertence. That the omission of the plaintiff to swear the witness happened through inattention or mistake, there can be little room for doubt upon the evidence; but that was not the charge which the defendant undertook to justify. He invited the plaintiff into court to vindicate his character; but when he got there the ground was changed. He did not ask the jury to say that the plaintiff had intentionally disregarded his duty, or committed a gross violation of his oath of office ; but he asked them to find that the plaintiff had made a mistake. The charge was clearly erroneous, and the verdict must be set aside.

New trial granted.