Fountain v. West

Dillon, J.

i. Juey: challenge. I. In selecting the trial jury, twelve lawful men being in the box, both parties passed them for cause, Plaintiff, being inquired of by the court, said he had no peremptory challenges to make. Defendants then challenged a juror peremptorily, and another lawful juror was called to fill the panel. Both these passed for cause. But the plaintiff was allowed by the court, against the defendants’ objection, peremptorily to challenge one Tuck, who was on the panel at the time the plaintiff passed his first peremptory challenge. Tuck was directed to retire, and another was called to fill the panel. To this the defendants excepted. In argument, *13 the defendants’ counsel cite no section of the statute which was violated by the action of the court. It seems to us that the course pursued was unobjectionable. It certainly is, so far as we know, the usual one. As the jury first stood, the plaintiff was satisfied. Defendants’ challenge changed its constitution. We see no good reason for confining the plaintiff to the new juror, or for refusing him the right to make a further peremptory challenge. His first waiver counted one. Laws 1862, p. 229, § 3; see also Emerick v. Sloan, 18 Iowa, 140; Davenport Gas-light Co. v. Davenport, 13 Id. 229; Spencer v. De France, 3 G. Greene, 216.

% libel : offenses. II. The court refused to allow the defendants to prove, by witnesses, that the plaintiff had been guilty of specific offenses and pa/rticular acts of dishonesty, such as that, in 1859, he had stolen corn; that he had charged one witness with goods which witness paid him for at the time; that he wanted fraudulently “ to put land and cattle in the name ” of another witness; that he paid a witness five dollars in counterfeit money, etc. We are aware of no rule of law, and appellants have cited no case, which would allow proof to be made of specific offenses and particular acts of dishonesty, not connected with the transaction under investigation.

None of these matters were set up in the pleadings. The law presumes every man is prepared, at all times, to answer as to his general reputation. And hence the court in this case allowed defendants’ witnesses to impeach the general character of the plaintiff. But the law does not presume that any man can come prepared to defend himself against specific, collateral acts and charges, not in issue in the cause. See Fisher v. Tice, 20 Iowa, 479; Forshee v. Abrams, 2 Id. 571.

*14 3__aggraTa-tory matter. *13 Nor did the court err, in refusing to allow another witness, on the trial, to testify “ that the plaintiff was in the *14 habit of committing larcenies; that he had st0ien large quantities of timber, corn, posts, etc., and was thereby guilty of all manner of meanness and rascality.” The court certifies that it sustained the objection to this evidence on the ground that the substantial charge, in the alleged libelous writing, was that plaintiff had poisoned George West’s cattle, and the remainder was aggravatory matter to the main charge. The court accordingly confined the defendants, in proof of their justificatory plea, to facts and circumstances tending to prove that the plaintiff did poison the cattle. In our judgment the view of the court was manifestly correct. (See fourth division of this opinion.)

4. pbaotioe: affirmative, III. The answer denied all allegations in the petition which it did not admit; and, among other things, it denied all malice, denied amount of damages, denied intentional publication, etc.

Under these circumstances the court ruled rightly that the plaintiff held the affirmative of the issue, and had, therefore, the right to open and close the case. If there should be any doubt upon this point, it would require a very clear case of prejudice resulting from the action, of the court to justify reversing, for this reason, a judgment after trial .upon the merits. Woodward v. Laverty, 14 Iowa, 381; Smith et al. v. Cooper, 9 Id. 376.

s. Libel: iUeiiefCnoton: sufficient. IV. The plaintiff asked, and the court gave to the jury, the following instructions: 1. “The truth of the libelous matter charged may be given in evidence by defendants under a plea of justification, but sucp plea tenders an issue of fact and not a mere matter of belief, and it is incumbent on defendants to prove the truth of the matter charged” under such plea; that is, as applied to this case, if defendants published the alleged writing, it is no justification that they believed plaintiff guilty of poisoning the cattle, but, to *15 sustain such plea, defendants must prove that plaintiff did, in fact, poison the cattle of West. Claiming this to be erroneous, the defendants’ counsel argue that the justification need only be as broad as the specific charge, and no broader. This rule is not denied. He then advances another step and claims that the charge is not that the plaintiff did in fact poison West’s cattle, but only that the defendants “ from circumstantial evidence had good reason so to believe, and did so believe.”

In our judgment, the District Court held rightly that the writing in question could not be justified by defendants proving that they believed and had good reason for believing the plantiff guilty of poisoning the cattle.

It would be little less than holding'out a bonus for the publication of libelous writings to decide that the party publishing could successfully take covert behind his belief. The law is tender of the reputation of the citizen. It seeks to protect it. It is no light matter to charge another with a crime, and publish it to the world. He who does so in a way which the law holds not privileged assumes the peril of proving it to be true. No other rule would adequately restrain indiscreet, passionate or malicious persons.

6 _mitioar ti°n. The court charged the jury that if defendants had reason to suspect and believe that the plaint-jg? had poisoned West’s cattle, and published the writing under that belief, this (if plaintiff had not been proved guilty in fact), would only go in mitigation of damages'. This ruling was sufficiently favorable to the defendants; and their exception thereto was not well taken.

_jUStl_ quantum of prooi' Y. The court charged “the jury that if they had a reasonable doubt of plaintiff’s having poisoned George West’s cattle, the plea of justification is not made out,” and defendants excepted.

*16 Defendants’ counsel contend this instruction is erroneous as to the quantum of evidence, claiming that a mere preponderance is sufficient, citing 1 Hill. on Torts, 445, pl. 47, and some other authorities. Under our statute, poisoning the cattle of another is a crime. It is true that some authorities hold that to justify such an offense, the defendant is not bound to. produce such evidence as would convict the plaintiff if he were on trial therefor. Other airthorities hold just the contrary, and the latter rule has been so held in this State for many years. Bradley v. Kennedy, 2 G. Greene, 231; Forshee v. Abrams, 2 Iowa, 571; 2 Greenl. Ev. § 426. We do not stop to determine how we would decide, were the question res mtegra. The rule as adopted in this State has at least an equal weight of authority in its favor. It was adopted many years ago. The legislature has never seen lit to interfere. Under the circumstances we are not disposed to change it. It certainly has the effect to shield the character of the citizen from incautious assaults, as well as those actually malicious, by compelling full and strict proof of a charge imputing a criminal offense.

The foregoing embraces all the assignments of error of sufficient importance to require distinct notice. We have preferred to meet the questions upon the merits, rather than to avail ourselves of the objection made by appellee, that the record did not fully present them, because the depositions were not sufficiently identified by the bill of exceptions, and because all the instructions were not embraced therein.

Affirmed.