Burford v. Wible

• Decision Date: 01 January 1858
• Parties: Burford versus Wible.
• Court: Pennsylvania Supreme Court

Page 95

32 Pa. 95

Burford versus Wible.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Armstrong county.

Phelps, for the plaintiff in error, cited Steinman v. McWilliams, 6 Barr 170; 2 Greenl. Ev. § 426; Andrews v. Vanduzer, 11 Johns. 38; 1 Wend. 451; Whitaker v. Carler, 4 Ired. 461; Hibler v. Servoss, 6 Mis. 24; 1 Ld. Raym. 727; Bull. N. P. 9; Cro. Jac. 677; Cro. Eliz. 623.

Golden & Fulton, for the defendant in error, cited Minesinger v. Kerr, 9 Barr 312; Beehler v. Steever, 2 Wh. 313; Thompson v. Barkley, 3 Casey 263.

The opinion of the court was delivered by CHURCH, J.

The words declared upon, impute to plaintiff the offence of fornication, committed with four different persons, at as many distinct times and places. And it was ruled by the court below, and is contended here, that the proving of one of them to be true, furnishes a complete defence, under the plea of justification, to all. There is some distinction, between the proof required of a plaintiff to maintain an action for words, and such as will establish a full defence under that plea. For although there must be no variance, in substance, between the words laid and those proved, yet under such plea, the evidence to sustain it effectually must be equally certain and circumstantial, as would be necessary to convict of like offences in the criminal courts. The law of pleading requires the slanderous words to be laid in the narr. as spoken, and the law of evidence requires them to be proved as laid; yet it is unnecessary, in order to maintain the action, to prove all the words laid, provided enough of them, actionable in themselves, or made so by proper colloquiums and innuendoes, are established.

But this is not the case in making out a defence in bar of the whole action on this plea; for in reality, a justification pleaded is an admission of record, by defendant, that he spoke the words as laid in the narr., and with the same meaning therein averred: 2 Saund. Pl. & Ev. 804; Johns v. Gittings, Cro. Eliz. 239. He thus, in general, by that plea, takes the affirmative of making good the charge, as circumstantially as it is declared upon; and failing in part, he necessarily fails altogether, so far, at least, as the plaintiff's legal right to recover is involved. And the justification to be relied upon must be of the specific offences as alleged, for if it extend not so broad as the allegation, or go beside it, or fall short of it, the defence will be held insufficient. Nor is it enough to justify the words literally, but it must in addition be co-extensive with the legal and effective sense. See notes to Howard v. Thompson, 1 Am. L. Cas. 178-9; also Skinner v. Powers, 1 Wend. 451. In the latter case, it is said by Chief Justice SAVAGE, that a charge of misconduct, of any specific kind, is not justified by proving plaintiff guilty of misconduct of a similar character. The misconduct relied upon in justification, must be proved as broad as the charge; and the proof of the truth of one out of many charges, does not constitute a justification. The declaration in the case before him, embraced substantially six charges, and the plea was general, while defendant only proved one of them. Assuming, therefore, that this testimony sustains the plea as to one of the four colliers, what becomes of the other three? If the words are true, as alleged to have been uttered, the plaintiff is subject to several prosecutions for the offence committed with the different colliers, but under defendant's proof with only one of them. Although one-fourth of a justification might be admissible in proof, when offered, because non constat that the other three-fourths may not be also proved, the legal effect of one-fourth of a defence is a different question. A party may not be able to prove his whole defence, by the same witness who proves a part. Hence he may justify as to one, and rely on his plea of not guilty as to the residue. In such a case, however, he could not be said to have furnished a complete defence in bar. The legal effect would not extend beyond a palliation of the alleged slander.

For further illustration of these views, we may take the record of this cause. Suppose the parties had gone to trial on the plea of not guilty, merely, and the plaintiff had only proved the speaking of the words, James Wible testifies, but in reference to him, designated as a collier, it would not have been sufficient to support the action. Much more, then, should it be held insufficient to defeat the action, on this justification plea, both as to the words laid in the narr. and those proved against defendant on the trial. This is as plain almost as a demonstration, even on the basis...