CHAPTER XVII. EVIDENCE FOR DEFENDANT. What evidence is admissible depends upon what plea or answer is interposed-What may be proved under the general issue-Evidence to support a justificationPlaintiff's reputation in issue-Inquiry limited to plaintiff's general reputation-And to his reputation prior to the publication complained of-Truth in mitigation-Conduct of plaintiff leading to belief in truth -Report or suspicion of plaintiff's guilt in mitigation -Plaintiff's standing and condition in society-Prior or subsequent declarations of defendant-Heat and passion-Previous publications by the plaintiff-Con troversies between plaintiff and defendant prior to the publication-Mitigation-Circumstances not admis sible in mitigation. § 402. What evidence the defendant may give depends upon what plea or answer he has interposed.1 His proof 1 We have already (p. 63, note I, ante) referred to some decisions on the proof of intent; we here add some others. When defendant offers himself as a witness he may be examined by plaintiff as to his intent (Com'wealth v. Damon, 17 The Reporter, 559 [Mass.]), and he may on his own behalf testify as to his intent. (Cowell v. Day, 18 Week. Dig. 97; Scranton v. Chase, 4 Law Times Rep. N. S. 17 [Pa.]; contra, Barr v. Hack, 46 Iowa, 308.) In Smith v. Higgins (82 Mass. [16 Gray], 251), it is said: In slander the good faith of the defendant and the feelings which prompted him to speak the words alleged in the declaration, being properly in issue, he is competent to testify concerning them. The testimony of the defendant concerning his motive in speaking the words, his belief in their truth, and the absence of ill-will or malice toward the plaintiff is admissible. (And to the like effect, see Wilson v. Noonan, 35 Wis. 321; McKown v. Hunter, 30 N. Y. 628; Turner v. O'Brien, 5 Neb. 542; and see The People v. Moore, 37 Hun, 84.) In White v. Tyrrell (5 Ir. C. L. R. 477), the defendant having written a letter, was permitted to be asked the question whether in writing the letter he had the intention of provoking a challenge. In Dillon v. Anderson (43 N. Y. 236), the action was on contract, defense, that contract was made jointly with H., who was not made a party. The contract was in writing and signed by defendant. H. was must correspond with his plea. Under the common-law system of pleading and procedure, many matters of defense named in the body of the paper as a contracting party, but it was not signed by him; on the trial, the defendant was called as a witness on his own behalf, and asked by his counsel, "Did you intend to make an individual contract?" The question was disallowed, and held in the Court of Appeals: "The testimony called for was not proper. There are authorities that a witness may be asked his motive or intent in doing an act.. We think that they hold no more than this; that where the doing the act is not disputed, but is affirmed, and whether the act shall be valid or invalid hangs upon the intent with which it was done, which intent from its nature would be formed and held without avowal, then he upon whom the intent is charged may testify whether he secretly held such intent when he did the act. Thus an insolvent assignor in trust, charged with the fraudulent intent to hinder and delay creditors, may be called in support of the deed of trust, and may say whether, when he made it, he had no fraudulent purpose; and one sued for a malicious prosecution may testify that in setttng on foot the legal proceedings he believed that there was cause for them. And as an extreme case which we are not willing to extend, one against whom the defense of usury has been set up, has been permitted to testify what was the intention in stipulating for a sum reserved out of the face of a note. But that an act should be held to have or not to have effect, and one party to it to be bound or not, as the other party to it should, by his undisclosed purpose, have determined, is warranted by no sound principle." In Robbins V. Fletcher (101 Mass. 115), an action of slander for accusing plaintiff of fornication, defendant having denied, in his testimony in chief, that he spoke the words alleged, or that he had any ill-will toward the plaintiff, may be asked on cross-examination whether he did not, before the time when it was contended that he uttered the words sued on, have a hostile feeling toward a person whom there is evidence that he spoke of as the other party to the offense. And where the defendant testified to having no ill-will towards plaintiff, it was held he might be asked on cross-examination, whether he had not brought suits against the plaintiff, but he cannot be asked, what were the subject-matters of those suits. (Boynton v. Boynton, 43 How. Pr. R. 380.) In an action for malicious prosecution, defendant's counsel proposed to ask defendant whether, in procuring the warrant, he acted without malice. The question was disallowed, and, by the court, "It was for the jury to say whether the defendant acted maliciously, and to allow the question would be substituting the witness in place of the jury to determine one of the most important questions in the cause." (Lawyer v. Loomis, 3 Sup. Ct. Rep. [T. & C.] 396.) That case was overruled. (McCormick v. Woodworth, 47 Hun, 71.) In an action against defendant as superintendent of the poor, to recover for maintenance of a pauper alleged to have been improperly removed by him, with intent that the pauper should become chargeable to another county. held defendant might be asked, Did you send the pauper from the county of H. in good faith? (Cortland Co. v. Herkimer Co. 44 N. Y. 22.) It was held not proper to ask a witness, What would you have done with the proceeds if you had effected a sale? (Cowdrey v. Coit, 44 N. Y. 391.) Held not proper to ask a witness what was his intent in taking more than seven per cent. interest. (Fiedler v. Darrin, 50 N. Y. 443, 444.) And in a prosecution for seduction, held not proper to ask the woman, "Would you have consented to it (the intercourse) without a promise?" (Cook v. The People, 2 Sup. Ct. Rep. [T. & C.] 404.) A question to witness, "In signing indorsement, did you intend to adopt the seals of the obligors?" not allowed. (Brown v. Champlin, 3 N. Y. Weekly Dig. 189.) În an might be given in evidence under the general issue which now require to be specially pleaded. So, too, under the common-law system, mitigating circumstances could not be pleaded, but were admitted in evidence under the general issue; and this is still the rule where there is not any statutory provision on the subject. In New York and some other States, provision is made by statute allowing the defendant, in actions for slander and libel, to set forth in his answer the mitigating circumstances he will prove upon the trial. Some of the effects of these statutory provisions have already been referred to under the head of Pleading; other effects will be noticed hereafter. § 403. Under the general issue the defendant was at liberty to prove anything which destroyed the plaintiff's cause of action.' He might disprove the fact of publication, or show that the matter published was not of an injurious character, or that the publication was privileged,' action for slander, defendant was not allowed to be asked whether, in making the publication, he had any thought of injuring plaintiff. (Harwood v. Keech, 6 Sup. Ct. Rep. [T. & C.] 665; 4 Hun, 391.) On a trial for an assault with an axe, it was held proper to ask the prisoner what was his "intention in taking the axe from the shed to the house." (Kerrains v. The People, 60 N. Y. 221.) One person cannot testify as to the intent of another. (Manuf. B'k v. Koch, 8 Cent. Rep. 672; 36 Alb. L. J. 34.) 1 Barker v. Dixon, 1 Wils. 45; and see O'Donoghue v. McGovern, 23 Wend. 26. Where the words clearly impute a felony, if defendant does not justify, he cannot show that the words related to an act which might have been innocent. (Laine v. Wells, 7 Wend. 175.) In New York, the defendant may examine plaintiff as a witness before the trial, and if, on such examination, plaintiff refuses to answer a proper question, his complaint may be struck out. (Richards v. Judd, 15 Abb. Pr. Rep. N. S. 184; 2 Sup. Ct. Rep. [T. & C.] 479; Funk v. Tribune Asso. 2 City Ct. Rep. 43.) In Maryland, by statute, truth may be given in evidence under the general issue. (See Richardson v. The State, 66 Md. 205; ante, note 3, p. 496.) 2 O'Brien v. Clement, 15 Law Jour. Rep. 285, Ex.; 3 D. & L. 676. Where the defense is privileged communication, it need not be specially pleaded. (Lillie v. Price, 1 Nev. & P. 16; 5 Dowl. 432; Richards v. Boulton, 4 Up. Can. Q. B. Rep. O. S. 95; Abrams v. Smith, 8 Blackf. 95; Stannus v. Finlay, Ir. Rep. 8 Com. Law, 264.) But it may be specially pleaded (Dunn v. Winters, 2 Humph. 512), and it seems it must be pleaded in Massachusetts. (Goodwin v. Daniels, 7 Allen [Mass.], 61.) In New York, it must be pleaded. In England, in actions of slander of plaintiff in his office, profession, or trade, the plea of not guilty will operate to the same extent precisely as at present in denial of speaking the words, of speaking them maliciously and in the sense imputed, and with reference to plaintiff's as being a fair comment on a matter of public concern ; any circumstances which tended to disprove malice; or that plaintiff procured the publication with a view to an action; and where the libel consisted of a report of proceedings the publication of which was not privileged, it was held that it might be shown under the general issue and in mitigation that the report, although not correct, was an honest one, and intended to be a fair account of the transaction referred to. The general issue put in issue the malice in making the publication, and amounted to a denial of the special damage, and the general good reputation of the plaintiff (§ 406), but it admitted the induce office, profession, or trade; but it will not operate as a denial of the fact of plaintiff holding the office, or being in the profession or trade alleged. (Reg. Gen. H. T. 4 Will. 4; 2 C. & M. 23; 10 Bing. 477; 3 Nev. & M. 9; 5 B. & Adol. 9.) All matters in confession and avoidance shall be specially pleaded. (Ib.) 1 Lucan v. Smith, 20 Jur. 1170; 38 Eng. Law & Eq. Rep. 395. Weaver v. Hendrick, 30 Mo. (9 Jones), 502; Smith v. Smith, 39 Penn. St. R. 441; Sims v. Kinder, 1 Carr. & P. 279; Van Derveer v. Sutphin, 5 Ohio St. 293; Swift v. Dickerman, 31 Conn. 285; Williams v. Miner, 18 Conn. 464; Thomas v. Dunaway, 30 Ill. 373; Brunswick v. Pepper, 2 C. & K. 683; Remington v. Congdon, 2 Pick. 310; Gilman v. Lowell, 8 Wend. 573. And in New York under a general denial and a proper statement in the answer, any circumstance to disprove malice may be shown, although it tended to prove the truth of the charge. (Bush v. Prosser, II N. Y. 347; Bisbey v. Shaw, 12 N. Y. 67; Dolevin v. Wilder, 34 How. Pr. Rep. 488; Chapman v. Calder, 14 Pa. St. 365; Neeb v. Hope, 111 Penn. St. Rep. 145.) Where there is any, the slightest doubt in the mind of the judge as to whether the facts set up in mitigation tend to disprove malice, he should permit them to be proved, and submit the question of malice to the jury. (Id.) 3 See ante, note 3, p. 96. In an action for slander, plea the general issue. Held, proper to refuse to charge "that if defendant did no more than repeat a report which originated from plaintiff's levity and carelessness, the plaintiff could not recover." (Fitzgerald v. Steward, 53 Penn. 343; see apparently contra, Shirley v. Keathy, 4 Coldw. [Tenn.] 29.) Plaintiff's motive in bringing the action is immaterial to the issue on a plea of justification. (Bradley v. Kennedy, 2 G. Greene [Iowa], 231.) 4 Smith v. Scott, 2 Car. & K. 580; and see East v. Chapman, Mo. & Malk. 46; Charlton v. Watton, 6 C. & P. 385. Keegan v. Robson, 6 Up. Can. Q. B. 375. • Wilby v. Elston, 8 C. B. 142. A traverse of special damage held unnecessary and improper. (Smith v. Thomas, 2 Bing. N. C. 372; see Perring v. Harris, 2 Moo. & Rob. 5; Custis v. Sandford, 4 Ir. C. L. 197.) The complaint usually alleges that plaintiff has sustained damages to a certain amount. This we suppose is not admitted if not denied. It was held otherwise (Goodyear Dental Comp. v. White, 8 The Reporter, 423; U. S. Circuit Co't, N. Y. Aug't, 1879), but defendant was allowed to amend his answer by inserting a denial. 2 ment1 and the falsity of the charge. The defenses of accord and satisfaction (§ 250), former recovery (§ 251), truth (§§ 354, 409), and illegality of plaintiff's occupation,3 must be specially pleaded to enable the defendant to give evidence of them on the trial.* 404. As to a justification, it is held that, in an action for slander or libel, the burden of proof is upon the defendant. The charge complained of being the commission of a criminal offense, the same degree of evidence is necessary to sustain a plea of justification as would be necessary to convict the plaintiff in a criminal prosecution for the same offense. At least the defendant must prove the crime charged to the satisfaction of the jury, and beyond a reasonable doubt. The plea must be substantially proved, or 1 Fradley v. Fradley, 8 C. & P. 572; Heming v. Power, 10 M. & W. 564; Gwynne v. Sharpe, 1 C. & Mar. 533. 2 Sheahan v. Collins, 20 Ill. 325. 3 Fry v. Bennett, 28 N. Y. 324; Trimmer v. Hiscock, 27 Hun, 364; § 183, ante. Libel charged an Englishman with having forsworn his allegiance by enlisting in the American army; plea of justification. Held, that plaintiff's admission that he enlisted in the American army was evidence to prove the justification. (Hill v. Hogg, 4 All. [N. B.] 108.) Where the owner of a race horse brought action for a libel charging him with having caused the horse to be pulled in a race, and the answer was not guilty, and justification, it seems that evidence of the shouts of the spectators is admissible. (Walker v. George, 5 A.J. R. 29.) Stith v. Fullenwieder, 19 Pac. Rep. 314 (Kansas); Ransom v. Christian, 56 Ga. 351; Gall v. Fleming, 10 Ind. 253; Fry v. Bennett, 28 N. Y. 324. Landis v. Shanklin, 1 Carter (Ind.), 92; Shoulty v. Miller, Id. 554; Gants v. Vinard, Id. 476; Newbit v. Statuck, 35 Maine (5 Red.), 315; Dwinells v. Aikin, 2 Tyler, 75; Seely v. Blair, Wright, 683; Steinman v. McWilliams, 6 Barr, 170; Willmett v. Harmer, 8 C. & P. 695; Swails v. Butcher, 2 Carter (Ind.), 84; Woodbeck v. Keller, 6 Cow. 118; Forshee v. Abrams, 2 Clarke (Iowa), 571; Merk v. Gelhauser, 50 Cal. 631; Riley v. Norton, 65 Iowa, 356; contra, Barfield v. Britt, 2 Jones L. (N. Car.) 41; Gorman v. Sutton, 32 Penn. 247; Lanter v. McEwen, 8 Blackf. 495; Wonderly v. Nokes, 8 Blackf. 589; Folsom v. Brawn, 5 Foster (25 N. Hamp.), 114; Kincade v. Bradshaw, 3 Hawks, 63. Offutt v. Earlywine, 4 Blackf. 460. Evidence of plaintiff's being suspected is not sufficient. (Commons v. Walters, I Porter, 323; Knight v. Foster, 39 N. H. 576.) Shoulty v. Miller, 1 Carter (Ind.), 554; Tucker v. Call, 45 Ind. 31; Merk v. Gelzhaeuser, 50 Cal. 631; Bell v. McGinness, 40 Ohio St. 204; Kidd v. Fleek, 47 Wis. 443; McBee v. Fulton, 47 Md. 403; Riley v. Norton, 65 Iowa, 356 (overruling Bradly v. Kennedy, 2 G. Gr. 231; Forshee v. Abrams, 2 Iowa, 571: Fountain v. West, 23 Iowa, 9; Ellis v. Lindly, 38 owa, 461); Georgia v. Kipford, 45 Iowa, 533; Mott v. Dawson, 46 Iowa, 533; McGregor v. Eakin, 3 Bradw. (Ill.) 340; The People v. Briggs, 114 N. Y. 65. Napier v. Daniell, 3 Sc. 417; 2 |