Kidd v. Fleek
| Decision Date | 06 November 1879 |
| Citation | 2 N.W. 1121,47 Wis. 443 |
| Parties | KIDD v. FLEEK |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Green County.
Slander. The complaint contained two counts, relating to language used on two different occasions, the alleged defamatory charge against plaintiff in both cases being, in substance, that she had been guilty of the crime of larceny in stealing corn from the defendant. The answer alleged "that the supposed slanderous matters set up in the complaint are true of the plaintiff;" and further set out the facts which induced defendant to make the charge complained of.
The exceptions taken to the rulings of the court upon evidence and to the instructions given, will sufficiently appear from the opinion.
Defendant had a verdict; a new trial was denied; and plaintiff appealed from a judgment on the verdict.
Judgment affirmed.
The cause was submitted on the brief of Smith & Lamb for the appellant, and that of Winans & McElroy for the respondent.
Counsel for the appellant, besides arguing the exceptions to other rulings of the court in respect to evidence, contended that defendant, having pleaded the truth of the defamatory words in justification, was bound, in order to have a verdict in his favor, to make proof of the larceny charged upon plaintiff, with the same strictness as if plaintiff had been on trial for that crime (2 Greenl. Ev., 5th ed., § 426) that there was no sufficient evidence to sustain the verdict under that rule; and that the refusal of a new trial was therefore error.
There was evidence to support the verdict, and this court cannot hold that the court below abused its discretion in refusing a new trial. Janssen v. Lammers, 29 Wis. 88; Paine v. Roberts, 29 Wis. 642.
No question was made in the court below upon the degree of evidence necessary to support the respondent's justification. The question cannot, therefore, be properly raised in this court. Butler v. Carns, 37 Wis. 61. But it was not necessary to satisfy the jury beyond a reasonable doubt. Washington U. I. Co. v. Wilson, 7 Wis. 169; Wright v. Hardy, 22 Wis. 348; Blaeser v. Ins. Co., 37 Wis. 31.
A witness had testified to a declaration of the respondent charging the appellant with theft. He was then asked whether he understood the respondent to make the charge. The question was quite immaterial, and indeed improper, because it called for construction by the witness of language needing none, if the witness were competent to give it.
Another witness had testified to a declaration of the respondent charging the appellant with the theft, and stating the circumstances. He was then asked if he knew who was charged. This question was also immaterial, and perhaps improper, for similar reasons.
Again, a witness had given evidence tending to show that he witnessed the theft from the respondent's cornfield. He visited the locus in quo some time after. He was asked what he saw. He answered that corn had been husked there. This was of little weight, but was competent.
The...
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