McAlmont v. McClelland
| Decision Date | 26 September 1826 |
| Citation | 14 Serg. & Rawle 359 |
| Parties | MCALMONT v. MCCLELLAND. |
| Court | Pennsylvania Supreme Court |
IN ERROR.
Where in slander, the words laid are, that the defendant said that the plaintiff had stolen property; and the witnesses offered by the plaintiff can only testify, that the defendant said that the plaintiff had either taken or stolen it, without being able to say which expression was used, the court ought to receive the evidence and leave it to the jury to determine, from the sense of the whole conversation, which expression was used.
A repetition of the charge after suit brought, may be given in evidence, to show malice, in an action of slander.
In slander, evidence is admissible, to prove the defendant's situation in point of property.
ON a writ of error to the Common Pleas of Washington county, it appeared by the record, that Robert McClelland, the defendant in error, brought this action against John McAlmont, the plaintiff in error, for defamatory words. The declaration contained two counts, in the first of which the words were laid thus: " You are a thief, and I can prove it; you stole hides or leather out of your father's tanvats, in the night time." In the second count, the same words were laid in the third person.
At the trial, the plaintiff offered Isaac Griffith and Richard Chapman, to prove the facts hereafter stated; their evidence was objected to by the defendant's counsel, but the court admitted it, and exception was taken to their opinion. William Rankin testified that in the month of October 1823 after the election, he was at James Harwood's at a husking, in company with the defendant and several others that whilst at supper, the defendant asserted that the plaintiff, after his removal to Burgettstown, came to his father's in the night and took or stole (the witness could not say which was the expression) a quantity of leather from his father's vats: that the plaintiff took out the leather, and filled up the vats with tan bark: that the defendant asserted " he could prove this," or that " it could be proved," the witness could not say which expression was used, but he was confident it was one or the other.
Isaac Griffith swore that he was at Harwood's on the occasion referred to by Rankin: that they were talking about the election, when it was asked, what Robert McClelland (who was stated in the declaration, to have been a candidate for the office of sheriff) could do with a certain McConehough, who had made charges against him: that the defendant said he could do nothing with him; for that he, the plaintiff, had either taken or stolen (the witness could not specify which of the expressions was used) leather out of his father's tanvats: that the witness observed, he did not count it stealing, as it was from the premises of McClelland's father; but McAlmont (the defendant) said, it made no difference, though the father did not prosecute: that some time after, McAlmont was at the witness's house, with McClelland: that he did not deny what the witness had reported him to have said at Harwood's, except the circumstances of McClelland's going by night for the leather. Richard Chapman proved, that after the institution of this suit, he heard the defendant say, that he could have no difficulty in proving that the plaintiff had stolen his father's property.
The plaintiff offered to prove, by James Ross and others, the situation of the defendant in point of property; to which the defendant's counsel objected, but the court overruled the objection, and the evidence was given; upon which a bill of exceptions was tendered to the opinion of the court.
Waugh and Biddle for the plaintiff in error.
1. The words proved by Rankin and Griffith, did not go to support the declaration. The declaration charges the defendant with having said, that the plaintiff stole the leather, and the witnesses were unable to say, whether he said that he had taken or stolen it. Words must be proved as laid, and words to the same effect will not do. 2 Phil. Ev. 97. Words laid in the third person are not supported by evidence of words spoken in the second person. McConnell v. McCoy, 7 Serg. & Rawle 227; Brown v. Lamberton, 2 Binn. 34; 3 Binn. 515.
2. The evidence of Chapman went to prove words spoken since commencement of the suit, which was incompetent, if the words laid in the declaration were not proved. In Wallis v. Mease, 3 Binn. 550, the chief justice declared, that if it had not been already determined, that words spoken since those laid in the declaration were evidence, he should reject them.
3. The admission of evidence of the defendant's situation, as respects property, was wrong. The plaintiff's rank in life may be given in evidence, because it is in issue. Learned v. Buffington, 3 Mass. 552. But the condition of the defendant, is a different matter. The injury to the plaintiff is no greater on account of the defendant's estate; and as the defendant has no notice of the evidence, he may be much surprised by it. There is no adjudged case or authority on the point; but the reasoning of Starkie (1 Starkie on Slander 402) seems in our favor.
Kennedy, for the defendant in error. It is enough, if the witness proves the substance of the words laid in the declaration; words, which, in common parlance, have the same import. Miller v. Miller, 8 Johns. 74. The declaration may lay, that the defendant " spoke words in substance as follows. " Kennedy v. Lowry, 1 Binn. 393. The objection that the witness was not sure whether the word took or stole was used, may be answered by saying, that this was a question proper for the determination of the jury, upon a view of the whole evidence.
This was an action brought by McClelland against McAlmont, for defamatory words, laid in two counts; in the first, " you are a thief, and I can prove it; you stole hides or leather out of your father's vats in the night-time." In the second count, the words are laid in the third person.
The errors assigned were in receiving the evidence of William Rankin and Isaac Griffith; they are precisely of the same character, and are said to consist in this--that these witnesses could not state the very words of the defendant whether it was stole or took; and though they were sure it was either the one or the other, they could not state which. Admitting this to be the subject of a bill of exceptions to the evidence itself (for the sake of the argument), and for any...
To continue reading
Request your trial