Justice v. Kirlin

• Decision Date: 06 February 1861
• Parties: Justice v. Kirlin
• Court: Indiana Supreme Court

17 Ind. 588

Justice v. Kirlin

Supreme Court of Indiana

February 6, 1861

APPEAL from the Carroll Circuit Court.

The judgment is affirmed, with 3 per cent. damages and costs.

D. D Pratt and L. B. Sims, for the appellant.

OPINION

Hanna J.

Kirlin sued Justice for slander, averring that on, &c at, &c., he was post master, carried on a grocery and worked at his trade of shoe and boot making, and was deservedly a person of good name, &c., and that theretofore, a certain amount of money, to wit, $ 50, of one Andrew McDonald had been stolen, &c., by some person or persons, and the defendant well knowing the premises, but contriving, &c., did on, &c., at &c., falsely, &c., speak and utter, of and concerning the sad larceny, and of and concerning the plaintiff, the false, &c. Here several sets of words are set forth, some containing charges slanderous in themselves, and some that were not of themselves slanderous, such as, "he is the man that took the money, I know it," with an inuendo that plaintiff meant, &c.

There was a demurrer to the complaint, on the ground that it did not state facts sufficient, which was overruled. There was no objection taken to the sets of words separately.

The objection urged here to the complaint is, that it does not aver the innocence of the plaintiff of the larceny. We shall not stop to discuss the question of whether such an averment was necessary or not, for it appears to us the allegation that the speaking was false, sufficiently covers the objection made.

One Blue had testified that the defendant used the following language in speaking of the money of McDonald that had been stolen. "Kirlin was the man who took the money, and I know it."

The plaintiff then asked this question of the witness, "what did Justice mean by the language you have stated he made use of?" Answer. "He meant, I suppose, from the way I took it, that Kirlin was the man who stole the money."

There was an objection to the question, &c., overruled. It is now insisted this ruling was wrong. There is no averment in the pleadings, by way of inducement or explanation of the language laid as having been used, other than as herein set forth. As the language here proved to have been spoken, and the corresponding words laid in the complaint do not, per se, convey the meaning the plaintiff would wish to assign to them, a prefatory inducement was necessary to show that they were actionable. In such case four positive allegations would appear to be required: First. The fact of such larceny. Second. A speaking by the defendant, with reference to such larceny. Third. The words spoken. Fourth. That the defendant meant thereby to impute larceny to the plaintiff in that transaction. As there was no averment that any of the words alleged, or proved to have been used, had a local or provincial meaning, we are of opinion that the speaking of the words, with the circumstances attending the same, should have been detailed to the jury, and let them judge of the meaning. 3 Ex. Rep. 200; Harrison v. Bevington, 8 C. & P. 594; 2 Gr. Ev., § 417.

The next witness, one Greene, was asked a very similar question, and permitted to answer in like manner, namely, "what did the bystanders understand Justice to mean by the language you said he used? The language used was, "Mr. Kirlin was the man that took the money." We do not perceive but that the same objections existed to this as to the former ruling.

We are not able to see the necessity of the inquiry of either witness, under the circumstances, for the testimony of each, we think, showed that the speaking was in reference to the larceny of the money of McDonald, outside of their answers to the interrogatories.

We are of opinion that, under the circumstances, if the proceeding in asking and eliciting answers to said questions and the rulings thereon, were not strictly correct, yet that no injury could thereby have resulted to the defendant.

This witness, in detailing the conversation that occurred, stated, that something was said about a one dollar bill, and about Mr. Buckly having got the bill of Kirlin.

The plaintiff then asked the witness this question, "Is the Buckly of whom you speak, the same person that was taken up for stealing, two or three weeks ago?" Over the objection of the defendant the witness was permitted to answer in the affirmative.

The answer filed was, 1. Justification, in this, that plaintiff had stolen said $ 50. 2. Justification, because he had stolen one dollar, and that it was the same, &c. of which defendant spoke. 3. In mitigation that a larceny had been committed, and rumors and suspicions had fixed upon plaintiff, &c., whereupon, &c. 4. General denial.

It is insisted that the inquiry was intended to convey, to the jury, the impression that Buckly had been arrested for the larceny charged to have been committed, and thus ward off from Kirlin the imputations that might be cast upon him, by the evidence in reference thereto.

So far as the evidence had progressed at the time the question was put, there was nothing implicating either Buckly or Kirlin in said larceny. It is true that it was afterward developed, by the evidence of other witnesses, that a one dollar bill, identified by McDonald as one he had lost, was found in the hands of one Buckly, who on being apprized of its identity, presented it to Kirlin, on the ground that he had received it of him, and that Kirlin gave him other money for it. The question was therefore premature, except for the mere purpose of identifying the person, and, perhaps, raising an inquiry in the minds of the jury as to his character. It did not necessarily imply that he had been arrested for that larceny. The inquiry was not afterward pursued by either party, to show that he had been arrested, nor was he a witness, nor any evidence of the reason for his not being one. Nevertheless, we can not see that any...