
    Karney v. Paisley.
    1. Witness : competency or the -mm Under § 3983 of the Revision of 1860, the wife is not a competent witness for the husband; and her statements are inadmissible in evidence for the husband.
    2. Same : constitutional law. The Legislature has power, under § 4, art. 1 of the Constitution, to provide that a person interested in the event of a suit shall not be a competent witness therein.
    3. Evidence in slandee. In an action of slander the plaintiff may show the pecuniary condition of the defendant in aggravation of damages; and the defendant may be permitted to show the same in mitigation of damages.
    4. Insteuctions. Instructions in slander considered.
    
      Appeal from Dubuque District Court.
    
    Thursday, April 10.
    ACTION for words charging the plaintiff with larceny. The defendant appeals. The material questions raised in the trial below are stated in the opinion of the court.
    Samuels, Allison & Crane for the appellant.
    (No argument on file.)
    Wilson, Utley & Doud and O'Neill & Harvey for the appellee.
    I. What was said and done when the words complained of were spoken is admissible for the purpose of showing the feeling wbicb actuated the defendant. McClintoclc v. Cride, 4 Iowa, 453 ; 3 Am. L. C., 203; 3 Phil. Ev., 559 ; 2 Greenl. Ev., § 418.
    II. The court properly excluded the testimony of the defendant’s wife. Section 3983 of the 'Revision of 1860. The evidence of the wife, as to seeing a gold piece drop from the person of the defendant, was not admissible under the plea of justification, because it w;as hearsay and incompetent. Bush v. Prosser, 1 Ker., 347; Larned v. Buffington, 3 Mass., 553; Boot v. King, 7 Cow., 613 ; S. 0., 4 Wend., 114; Bisby v. Shaer, 2 Ker., 67; 1 Am. L. C., 199 ; Casper v. Barber, 24 Wend., 105; Williams v. Miner, 18 Conn., 464; Purple v. Horton, 13 Wend., 9; 2 Greenl. Ev., § 275 ; Snowden v. Smith, Maulé & Selwyn, 287.
    III. In an action of slander the plaintiff may give in evidence the pecuniary circumstances of the defendant. Hostey v. Broolcs et ux., 20 Ill., 115 ; Fry v. Bennett, 4 Duer, 247. The assessment roll was properly admitted in evidence to show the pecuniary circumstances of the defendant. 2 Dev., 63; 1 Phil. Ev., 387, note 109 ; see also Bennett v. Hyde,, 6 Conn., 24; Jackson v. Stetson et al., 15 Mass., 55-; Reñlcendorff v. Taylor, 4 Pet., 349.
    IY. The first instruction was too indefinite, and was properly refused..
    Y. When words are actionable, the law implies malice, and the fact that defendant honestly believed them true will not screen him from a verdict for the actual damage caused by his mistake. Prosser v. Brommage, 4 Barn. & Ores., 247; Shaw v. Sweeney, 2 G. Greene, 587.
   Lowe, J.

— A slander case, in which the plaintiff prevailed and the defendant seeks a reversal of the judgment against him, upon several grounds of alleged error.

The first demanding attention is, that his wife, Margaret, was not permitted to testify in his behalf. Section 3983 of the Revision of 1860 excludes her. But it is said this statute is inoperative, because in conflict with the fourth section of the first article of the Constitution. This, we think, is a misconception. There is nothing in the section of the Constitution referred to that takes from the General Assembly, the power to declare that interest in the event of a suit shall disqualify or shall not disqualify a witness, according as it shall in its wisdom think best. If, in the exercise of this power, it is competent for the Legislature to declare that interest in the result of a suit shall not dis: qualify, we suppose it falls equally within the scope of its powers, to restrict, if it thinks proper, a general enactment of this kind, and to say that while interest generally shall not disqualify, a special or peculiar interest, that which, for instance, results from the intimate relations of husband and wife, shall have that effect. And this is just what the Legislature has done in the section of the Code above specified. To hold that it is in conflict with the provisions of the Constitution, is to hold that the language of the section therein named ex vi termini precludes all legislation touching the competency of witnesses arising from interest. No such purpose as this, we think, was contemplated by the framers of that instrument. They did intend to guard against religious sentiment or belief of any and every shade being made a test of competency to testify; and it is very possible by the latter clause of the same section they intended to secure the competency of witnesses against other objections ordinarily made; but we think it quite clear that objections founded upon the interest of the witness were left where they always have been, under the control of legislation.

It seems scarcely necessary to allude to a kindred question made a distinct ground of error, namely, the incompetency of the husband to testify to the declaration of the wife. Besides the objection upon the score of hearsay and identity of rights and interests between tbe husband and wife, it would seem to follow, as a necessary conclusion, from the incompetency of the wife to testify for her husband under the sanctions of an oath, that her unsworn declarations could not be proved by a third party, and in that way be made evidence.

II. Against the objections of the defendant, the plaintiff on trial was permitted to show the condition of the defendant in point of property and pecuniary circumstances. It is still insisted that the objection was well taken. But to do so, in order to aggravate damages and also to allow the defendant to show his limited means, to mitigate damages, has been a rule of practice so frequently established and followed by the courts that we have no disposition to change it. Experience has not shown the propriety of abolishing such rules upon the ground that they are liable to abuse. It is always in the power of the court, in its instructions to the jury, to guárd them against an improper use of such evidence, as we think was very fairly done by the court in its charge to the jury in this case. 20 Ill., 115; 4 Duer, 247 ; 6 Conn., 24; 8 Mass., 546.

III. The court refused the first, fifth, eighth and eleventh instructions asked by the defense, to which exceptions were made. The first of these instructions is as follows:

“If from the evidence the jury believe that the plaintiff told the defendant she had got the money from her mother, and that if her mother did not say so, she (plaintiff) would give up the money to him, then it is no slander for the defendant to see her mother, tell her what had occurred, and ask her if she had let the plaintiff have the money.”

The objection to this instruction is its vagueness. "What is meant by the words, “ tell her what had occurred f ’ The evidence shows that quite a good many things had occurred before the defendant had his interview with the mother of the plaintiff. He had among other things accused her of stealing tbe money and property in question, in tbe presence of third persons, and stated that be bad missed gold coin from bis drawer, and that bis wife bad seen ber drop and pick up a gold piece of coin. Sbe denied tbe charge, said sbe had got tbe money of ber mother, &o. Now, if be bad told all that bad occurred to tbe mother, it would, it seems to us, be slander, if untrue. If be simply asked tbe mother whether sbe bad at any time let ber daughter have a piece of gold coin to tbe value of five dollars, remarking that there bad been a question of dispute between himself and ber daughter, this would be a different affáir, and would not amount to slander. But bow could a court safely give an instruction so indefinite in its terms?

The fifth and eighth instructions refused may be included substantially in tbe following proposition: “That if tbe defendant honestly believed that tbe plaintiff bad taken tbe money, that this was a circumstance which tbe jury might consider in judging of tbe motive, and determining tbe case, even under tbe plea of justification.” The object of these instructions was to give to tbe defendant the benefit of tbe fact stated, (if it existed,) as a mitigating circumstance which in law should reduce tbe amount of tbe damages. Conceding this to be tbe right of tbe defendant, yet, if tbe court bad in bis main charge to tbe jury given substantially these instructions, be was not bound to repeat them in different language at tbe instance of defendant’s counsel. Indeed, tbe court below discussed in bis charge to tbe jury tbe very proposition contained in these instructions, quite at length. Among other things, the court said: “The words ‘ mitigating circumstances sufficient in law to reduce tbe amount of damages,’ are not to be construed as meaning mitigating circumstances legally admissible in evidence, for if so it would leave the law as it was before, so far as tbe admission of mitigating circumstances are concerned; but it must be considered as referring to such circumstances as tend, to show an honest motive on the part of the defendant, and the absence of malice, for instance, that although mistaken, he believed the truth of the charges,” &c. This instruction of the court will be better understood when it is remembered that it was given with reference to the provisions of the Statute, contained in § 2929 of the Revision of 1860.

■ So, also, with reference to the eleventh instruction. It was substantially covered by the tenth, which had just been given. This makes it unnecessary to re-state the instruction, and to suggest some additional reasons why it could be properly refused.

A motion for a new trial was overruled, founded upon the foregoing assigned errors, and for the additional reason that the verdict was contrary to the evidence.

• It is confessed that the evidence to our minds is not very satisfactory, yet it does not fall within the familiar rule, which we have repeatedly established for disturbing the judgment below for such a cause.

We are not satisfied, in the condition of the record, that the defendant has been prejudiced by the rulings of the court below, or that a different result would likely be reached by granting a new trial, and therefore the judgment is

Affirmed.  