
    Patrick Haddock, Resp’t, v. Patrick Naughton, Appl’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    Evidence—Slander.
    In an action for slander in charging plaintiff with unlawful intercourse-with his own daughter, evidence that he attempted to outrage another daughter is admissible in justification.
    Appeal from a judgment in favor of plaintiff.
    
      D. 8. Hill (T. F. Bush, of counsel), for appl’t; George H. Carpenter, for resp’t
   Per Curiam.—

Without considering or passing on the question raised as to whether the answer properly alleged a justification, we are of opinion that the evidence offered to show that plaintiff attempted an outrage upon his daughter Anna was properly excluded by the trial court

This case did not involve a question of motive or intent. The simple question was, did the plaintiff have unlawful intercourse with his daughter Mary. It is only in very exceptional cases,an issue being raised as to the commission of a crime by a party to the action, that another distinct offence can be shown. Those cases are where the intent or motive or knowledge c.f the party is a subject of inquiry. This in Cary v. Hotaling, 1 Hill, 311; Hill v. Naylor, 18 N. Y., 588, arid all the other cases cited by appellant, the intent or .motive of the alleged wrong doer was in question and necessary to be shown. The case of Mayer v. The People, 80 N. Y., 364, was where the defendant was indicted for false pretenses. Before-he could be convicted it must be shown that he intended to cheat and defraud. On that question evidence of similar transactions at about the same time was held competent. In the opinion of Justice Bari in the note at the end of said case, the learned judge quoted from Wharton’s American Criminal Law as follows: “ Where the scienter or quo animo is requisite to and constitutes a necessary and essential part of the crime with which the person is charged, and proof of such guilty knowledge or malicious intention is indispensible to establish his guilt in regard to the transaction in question testimony of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent is competent, notwithstanding they may constitute in law a distinct crime.”

In this case the defendant to establish his justification, assuming that one was alleged in the answer, was not compelled to show motive, intent or scienter of the plaintiff. He was simply bound to show that plaintiff had unlawful intercourse with his daughter. We think that he could not do so, by showing an outrage or attempted outrage on the person of another daughter.

No other error is suggested by the learned counsel for the appellant. Nor is it claimed that the judgment should be reversed on the evidence.

We therefore conclude that the judgment should be affirmed with costs.

Mayham and Herrick, JJ., concurs.  