Folsom v. Brawn

Folsom v. Brawn.

A brief statement is a substitute for a special plea, and when it purports to contain an answer to the plaintiff’s declaration, it must embrace all the substantial elements of a special plea. Precision and exactness are not necessary, but distinct allegations are essential.

In an action for words spoken, imputing to the plaintiff the crime of perjury, a brief statement, purporting to contain a justification, should clearly and fully admit the speaking of the words, and aver their truth.

When a brief statement is defective, the proper practice is to move to reject it before proceeding to trial. And if a party goes to trial upon an insufficient brief statement, and evidence is received as upon one that is sufficient, it is too late, after all the evidence in the case is in, to move the court to instruct the jury not to consider the evidence applying to the brief statement, because it is insufficient.

In actions of slander, imputing to the plaintiff crime, it is not necessary that a plea or brief statement justifying the words should be sustained by the same' evidence as would be requisite to convict the plaintiff on an indictment for the crime. The rule of evidence in such cases is the same as in other civil actions.

The feelings and temper of a witness towards a party are proper subjects of inquiry, and if he denies any hostility, he may be contradicted by other witnesses.

The affidavits of jurors are not admissible to show their impressions as to the effect of their verdict upon the costs in the suit; nor to show the consultations that took place in the jury room, or the motives, inducements or principles upon which they founded their verdict.

Case for slander. The declaration alleged that a certain trial at law was had between Brawn, the defendant, and one Samuel Prescott, at Ossipee, in the county of Carroll, on the second Tuesday of November, 1846, on which trial Leonard S. Folsom, the plaintiff in this suit, was a witness for Prescott; and that afterwards Brawn, the defendant, charged Folsom with having committed perjury in his testimony given upon that trial.

The defendant pleaded the general issue and filed therewith a brief statement as follows:

“ The plaintiff will take notice that the défendant, on the trial of the above issue, will prove that the plaintiff, on the trial of the action George W. Brawn against Samuel Prescott, in the court of common pleas, holden at Ossipee, in the county of Carroll, on the second Tuesday of November, A. D. 1846, did testify that he was at the blacksmith shop of Enoch Prescott, in Meredith, in March, 1845, when said Brawn came there, and was there all the time he, said Brawn, continued there with said Samuel Prescott, and heard the conversation that said Brawn had with said Samuel Prescott, concerning a sore on a certain colt. Now the said Brawn says said Folsom was not present during the conversation aforesaid, and no such conversation was had between said Brawn and Prescott, as testified by said Folsom, and that whatever said Brawn may have said concerning the testimony of said Folsom on said trial, was as to said presence and conversation, and none other.”

It appeared that Folsom was a witness for Prescott on the trial at Ossipee, and testified substantially that he was at said shop, and heard the conversation between Brawn and Prescott about the colt.

The plaintiff’s evidence tended to show the words to have been spoken at Ossipee, immediately after the termination of the trial between Brawn and Prescott; in which trial Brawn was defeated. The evidence also tended to show that Brawn, at different times thereafter, reiterated to some extent the same charge.

To sustain his brief statement the defendant introduced one witness, who testified that he was at the blacksmith’s shop all the time that Brawn was there with Prescott, and that Leonard S. Folsom, the plaintiff, was not there, and did not hear the conversation between Brawn and Prescott about the colt. The defendant also introduced another witness, whose testimony tended to show that Folsom was not there, or that he was, according to the view which the jury might take of the witness’ testimony. This witness was not in the shop, but came up soon after.

The plaintiff, in reply, introduced said Prescot and another witness, who testified that Folsom was in the shop and heard the conversation.

The plaintiff requested the court to rule and to charge the jury that the testimony of two witnesses was necessary to sustain the defendant’s brief statement; but the court declined so to rule and charge, and left it to the jury to find from all the evidence, whether said Folsom committed perjury on the trial at Ossipee or not. To which ruling the plaintiff excepted.

The plaintiff also requested the court to rule and charge the jury that they could not, under the brief statement in this case, take into consideration any evidence offered for the purpose of proving the truth of the defendant’s charge, because the brief statement did not, with sufficient certainty, set forth that the plaintiff had been guilty of the crime of perjury; but the court declined so to do.

In the course of the trial, the plaintiff offered Aaron B. obinson as a witness, who, it appeared, was the agent of the plaintiff in the prosecution of the suit. The defendant contended and attempted to show by the cross-examination, that Robinson had endeavored to tamper with his witnesses, and on cross-examination, proposed to ask him whether, in a conversation with Margaret J. Watson, a witness for the defendant, after a former trial of this action, he did not tell her that she ought to have been ashamed to have gone to court, and that she should be sorry for what she testified — which questions said Robinson answered in the negative; and the defendant’s counsel was then permitted, though objected to by the plaintiff, to ask said Margaret whether Robinson did not so say to her, and to which she answered that he did.

The jury returned a verdict for the plaintiff for one dollar damages; and the plaintiff moved to set the same aside, and for a new trial, for supposed error in the foregoing rulings and decisions of the court, and “ because the verdict was against the evidence, no testimony in mitigation having been offered by the defendant other than that offered in sup. port of said brief statement, which was probably so regarded by the jury.” The court, however, did not instruct the jury that the evidence offered in support of the brief statement was to be regarded by them in mitigation of damages, but as a defence to the plaintiff’s right of recovery.

The plaintiff also moved that the verdict might be set aside and a new trial granted, because, as he alleged, the verdict was rendered under a mistake and error of the jury. And he produced the affidavits of a majority of the jury, showing that they supposed the plaintiff would recover full costs. Some of the jurymen testified that they should not have agreed upon a verdict for so small damages, had they known that the verdict would not carry full costs. Others testified that they never should have agreed to a larger verdict for the plaintiff upon the evidence furnished, let the costs follow as they might.

Bell, for the plaintiff.

Our first ground is, that no evidence should have been received under the brief statement, because it contains nothing showing the facts stated to be material. Also because it contains no allegation of corruption and wilfulness. These are matters of substance. Bissell v. Cornell, 24 Wendell’s Rep. 354.

The matter of defence in a brief statement must be stated with as much certainty as in a special plea, and it must amount to a complete justification. Gage v. Robinson, 12 Ohio Rep. 250; Washburn v. Mosely, 9 Shepl. 160; Alderman v. French, 1 Pick. 1; Shepard v. Merrill, 13 Johns. Rep. 475; Anson v. Stewart, 1 Term Rep. 448; 1 Taun. 543; 2 Chitty’s Pl. 665, Bricket v. Davis, 21 Pick. Rep. 404; Chamberlain v. Gorham, 20 Johns. Rep. 144; The State v. Burnham, 9 N. H. Rep. 34; 1 Holt, 299, note.

Our objection to the brief statement is, that it does not contain a charge of perjury.

Because a motion to strike out the brief statement may have been admissible in practice, it does not follow that the course which we took was erroneous. An exception to the evidence was proper. Rice v. Pollard, 1 Tyler’s Rep. 230; Cocheco Man. Co. v. Whittier, 10 N. H. Rep. 309.

Our second position is, that nothing short of the evidence which is necessary to convict in case of an indictment for perjury, could sustain the defence; and the court should have ruled and charged as we requested. Woodbeck v. Kellogg, 6 Cowen’s Rep. 118; Clark v. Dibble, 16 Wendell’s Rep. 601. The plaintiff should not be civilly or criminally liable, but both or neither. Whatever may be the rule generally in cases of slander, yet we contend that where the charge is that of perjury, the evidence in justification should be as full as upon an indictment for the crime. 2 Greenl. Ev. 345.

Third, the testimony of Margaret J. Watson was incompetent to show that Eobinson had been tampering with the witnesses. 2 Greenl. Ev. 449; Chase v. Blodgett, 10 N. H. Rep. 25.

Again, the verdict should be set aside because rendered under a mistake of the jury. This is shown by the affidavits which are before the court.

Bellows, with whom was Pierce and Emerson, for the defendant.

I. If the evidence under the brief statement was defective, the proper course was to move to reject it, else the brief statement stands like a special plea.

The brief statement does in fact set out the circumstances upon which the defence relies; in substance, that the plaintiff testified that he was present on a certain occasion, and heard a conversation about a certain colt, when in fact he was not present, and no such conversation took place. This is a substantial allegation that the plaintiff swore falsely.

In Massachusetts, under their rule requiring notice of matters in discharge and avoidance, if the party intends to object for a generality, he must do it before trial, or it cannot be treated as a mere nullity; but the party who files it may give in evidence the particulars of what is stated generally. Robinson v. Wadsworth, 8 Met. Rep. 67. A similar doctrine is laid down in Howe’s Practice, 410, 418. See also Chitty’s General Practice, 611, 618.

|g Notice of a motion to strike out is in the nature of a demurrer. Camp v. Allen, 7 Halstead’s Rep. 89. Again, no exception was taken to the evidence offered under the brief statement, and so the exception was waived.

II. As to the amount of proof. There was more than one witness. A second witness swore to what'tended to prove that the plaintiff was not present. But we hold that this issue is to be tried like other ones in civil cases, and that one witness is enough. Matthews v. Huntley, 9 N. H. Rep. 150; Kincaid v. Bradshaw, 3 Hawk’s Rep. 63.

There are cases doubtless that hold otherwise, but they go upon a fancied analogy between this case and an indictment for perjury, when no such analogy exists. In case of an indictment, the liberty of the respondent is at stake, and even his life, when the rule was established. And in most instances the result would depend upon the testimony of the person who conceived himself injured.' But in a civil action it is not so. The question is, simply, whether the statement made by the defendant is true; and the verdict does not establish the guilt of the plaintiff, so as to subject him to punishment, nor can the defendant, who is usually the most interested and best informed, be a witness.

If the rule be a sound one, it should be’carried so far as to require all reasonable doubt to be removed in cases that involve no imputation of crime. Besides, a verdict for the plaintiff answers this objection.

III. The defendant had a right to show the conduct of Robinson, the agent of the plaintiff, for the purpose of proving an attempt to tamper with the witnesses. This has nothing to do with the cross-examination, but is an independent matter, and, as we understand it, of familiar practice.

IV. The affidavits of the jurors cannot be received to show that they misapprehended the law. Tyler v. Stevens, 4 N. H. Rep. 116; Owen & a. v. Warburton, 1 B. & P. (new Reports,) 327; Vane v. Delaval, 1 Term. Rep. 11; Jackson v. Williams, 2 Term Rep. 281; Newton v. Gould, 13 Vermont Rep. 320; Hannam and ux. v. Belchertown, 19 Pick. Rep. 311; Wilkins v. Savary, 1 Brown, 123.