Barkly v. Copeland

Thornton, J. Action to recover damages for slanderous words spoken by defendant of plaintiff.

The plaintiff recovered a verdict of one dollar damages. He then moved for a new trial, which was denied, and from the judgment and the above order plaintiff appealed.

In regard to the motion of plaintiff to strike out certain portions of defendant’s answer, to which our attention is first called, we will remark that only such mitigating circumstances as were within the knowledge of the defendant when he spoke the words complained of can be alleged in the answer. (See Willover v. Hill, 72 N. Y. 36; Hatfield v. Lasher, 81 N. Y. 249.) But as the jury were instructed as to such circumstances in accordance with the above, the error of the court below in refusing to strike out that portion of the answer which set forth the circumstances of mitigation not known to the defendant when he uttered the words counted on worked no injury to the plaintiff.

[4]The defendant offered in evidence the deposition of Bussell Speegle, who had been convicted of stealing the cattle of Thomas Polk, in relation to which theft the disparaging words uttered by the defendant had been spoken. Speegle testified to statements made by him to several persons in regard to the theft of the cattle. The statements or declarations were made to Laura Moore, David'Burke, Pope, Costello, Mitchell, and I. Speegle, and were testified.to by all of the last-named, except Laura Moore, who does not appear to have been called. They tend to corroborate his testimony in regard to the connection of the plaintiff with the stealing of the cattle, by showing that about or not long after his (Speegle’s) arrest for the larceny of the cattle, he made statements in regard to it similar to those which he made in his testimony.

The statement to Laura Moore was made shortly before the cattle were taken to the plaintiff. The statements made to the other witnesses were made after his arrest.

The statements were allowed to go to the jury against the objection and exception of plaintiff, and before any evidence impeaching the witness Speegle had been introduced.

It has been held in this state that where an attempt has been made to impeach a witness by proving former contradictory statements, he cannot be supported by evidence that he has made to other persons declarations consistent with his testimony. This ruling was made in People v. Doyell, 48 Cal. 90, 91. But in the same case it-was said: “ Such declarations may, however, be admissible in contradiction of evidence tending to show that the account is a fabrication of late date, when it may be shown that the same account was given before its ultimate effect and operation (arising from a change of circumstances) could have been foreseen; and also, perhaps, in other peculiar cases.” (48 Cal. 91.) It has been frequently held that when the witness is charged with testifying under the influence of some motive prompting