Barfield v. Britt

• Decision Date: 31 December 1854
• Citation: 2 Jones 41,62 Am.Dec. 190,47 N.C. 41
• Court: North Carolina Supreme Court
• Parties: ELZIFF BARFIELD v. THOMAS BRITT.

2 Jones (NC) 41

47 N.C. 41

62 Am.Dec. 190

ELZIFF BARFIELD

v.THOMAS BRITT.

Supreme Court of North Carolina.

December Term, 1854.

In an action for words spoken, charging the plaintiff with the murder of an individual, what that individual said, though in extremis, and under the full impression that he would not recover, is not evidence on the plea of justification.

To establish a justification, the same cogency of proof is not necessary, as would be required if the plaintiff were on his trial upon a criminal charge for the offense imputed to him in the words.

THIS was an action of SLANDER, tried before his Honor Judge MANLY, at the Fall Term, 1854, of Robeson Superior Court.

The declaration was for words spoken, charging the plaintiff with murder by secretly poisoning one Jacob Britt. The words were proved within time, and the case turned upon the plea of justification. The defendant offered the dying declarations of Jacob Britt, charging the plaintiff with the crime imputed to him by the words of the defendant, which were objected to by the plaintiff's counsel, but admitted by the Court. For this the plaintiff excepted.

The plaintiff's counsel asked the Court to instruct the jury that to establish the plea of justification, the jury should have the same cogency of proof as if the plaintiff were on trial for his life under the criminal charge of murder. This, the Court, however, refused; and instructed the jury that a preponderance of evidence, as in a civil case, was all that was necessary. For this, plaintiff further excepted.

Verdict for defendant. Judgment and appeal.

J. G. Shepherd, for plaintiff .

Winslow and Strange, for defendant .

BATTLE, J.

Two questions are presented by the bill of exceptions. First: Whether in the issued joined, upon the plea of justification, the dying declarations of Jacob Britt could be given in evidence by the defendant, to prove the truth of the words for which the action was brought? Secondly: Whether his Honor was right in refusing to instruct the jury that the defendant must sustain his plea by the same cogency of proof as would be required against the plaintiff, were he on trial for his life, under a charge of murder; but on the contrary, saying to them that a preponderance of evidence, as in a civil case, was all that was necessary.

The first question is raised by the plaintiff's exceptions to the admission of the testimony, and we think the exception is well founded. The reasons by which his Honor's decision was influenced are not stated, and we do not know that he felt himself bound by the case of McFarlane v. Shaw, 2 Car. L. Rep. 102; or whether he thought the issue before him was the same as it would have been had the plaintiff been on trial for the murder of Jacob Britt, and that therefore this was an exception to the general rule, that dying declarations are not per se admissible in civil cases. We say per se, because where dying declarations constitute part of the res gestæ, or come within the exception of declarations against interest, or the like, they are admissible, as in other cases, irrespective of the fact that the declarant was under the apprehension of death. 1 Greenlf. Ev. sec. 156. Whether the decision was influenced by the one reason or the other, or by both combined, we are satisfied that it is not supported by principle, while it is opposed by the whole current of the recent cases in England and in this country.

The case of McFarlane v. Shaw, was decided by the Supreme Court under its former organization, in the year 1815. The action was by a father for the seduction of his daughter: the defendant pleaded not guilty, and on the trial, the plaintiff, to prove the seduction, offered to show that after all hope of life was gone, his daughter, who was then sick in child-bed, desired that the defendant might be sent for; and upon being informed that he would not see her, exclaimed, “I am going: he will soon go too, when he will be obliged to see me, and will not dare to deny the truth.” The testimony was objected to, but received by the Court; and the case came before the Supreme Court on a motion for a new trial: The Court, after stating that such testimony was admissible in certain criminal cases, in which life was at stake, contended that, though they had no precedent to guide them, it ought, from reason and analogy, to be admitted in a case like the one before them; but they grounded themselves chiefly on the circumstance, “that the fact disclosed in her declaration could only be proven by herself: she was the injured party through whom the cause of action arose to the father.” The Court then say further, “we give no opinion how far the dying declarations of an indifferent person, not receiving an injury and not a party to the transaction, would be evidence in a civil case. Our decision is confined to the state of facts presented in this case.” It is manifest that the Court labored under the impression, which then generally prevailed, that dying...