
    Doss v. Jones.
    The plea of justification, when accompanied by the general issue, in an action of slander, cannot bo given in evidence to support that issue on the part of the plaintiff; but after the words spoken are ^royed, the jury may take the special plea into consideration in aggravation of damages, as indicative of malice.
    ERROR from the circuit court of the county of Warren.
    This was an action of slander brought by Ransom Jones against William C. Doss, in the circuit court of Warren county.’ Doss filed the plea of the general issue, not guilty, and a special plea of justification. Issue was joined on both pleas, and submitted to the jury. The plain tiff read the special plea, and proved the speaking of the words in the declaration, and closed his testimony. The defendant offered no proof. The defendant asked the court to instruct the jury “ that the plea of justification was no evidence of the speaking of the slanderous words, or of the intention with which they were uttered.” This was refused by the court, and the following charge was given in lieu thereof, “ that the pica was no evidence of the words being spoken, but was evidence of the intention with which they were spoken, and might be taken into consideration by the jury in aggravation of damages.” There was a verdict for the plaintiff below in five hundred dollars damages, and final judgment upon the same.
    Guión, Prentiss and Smedes for plaintiff in error.
    The principal errors assigned upon which reliance is placed for a reversal of the judgment of the circuit court, are,
    1st. The refusal of the court to give the instructions above as asked for by the defendant below.
    2d. The error of the court in giving the instruction it did give to the jury, and
    3d. The giving instructions to the jury gratuitously by the court, unasked for and unsolicited by either party.
    1st. The statute in Revised Code,page 116, sec. 49, says, “the defendant in any cause may plead as many several matters, either of law or fact, as he may judge necessary to his defence.” He maypléad non assumpsit and payment, aiid yet not admit thé debt due thereby. He may plead justification and not guilty and yet'not supercede the necessity of the plaintiff’s proving his declaration. Gould Plead. 432-3. “ One plea cannot be supported by what is contained in another.” Kirk v. Noriel, 1 D. and E. 118. Montgomery v. Richardson et al. 5 Car. and Payne, 247.
    There have been, it is true, in Massachusetts, in 1 Pick. 1, and in 3 Mass. Reps. 546, and 15 Mass. Reps. 48, decisions which have gone so far as to say that the plea of justification when accompanied by that of not guilty, was evidence that the words were spoken, as well as of the intent.
    This however is clearly not the law; it was pronounced by Justice Woodbury, in 2 New. Hamp. Rep. 89,’as “contrary to immemorial practice as well as authority.” Chief Justice Marshall in 1- Devreux Rep. in relation to the same opinions as delivered in Massachusetts, says, as follows: “I believe it stands alone-, and that no similar decision has been made in any state of the Union.” See also 15 Mass. Rep. 56', in the note where the whole doctrine is fully and ably reviewed, and a multitude of strong and invincible authorities collected.
    2d. The court instructed the jury that the jolea of justification was not only evidence of the intention, but “could be taken into consideration in aggravation of damages.” This was going even farther than the cases in Massachusetts. There they only decided that after pleading justification, facts in mitigation of damages would not be listened to: this was as far as they went. It is believed that in no case where pleading more than. one plea is allowed, has it ever been determined that the plea of justification when accompanied with “ not guilty,” is evidence of anything, except in the cases above cited from Massachusetts.
    3d. But the court instructed the jury gratuitously. In its anxiety to procure a verdict for the plaintiff, or' in heedlessness or ignorance of the law, it palpably violated the letter and spirit of an act of the legislature, and put at defiance a solemn adjudication of this court. In the year 1833, the legislature passed the following act.- “ That for the better preservation of .the sanctity of the right of trial by jury pure and uninfluenced, no judge before whom any issue of fact may hereafter be tried by a jury, shall sum up or comment on the evidence; nor shall said judge charge the jury on points or principles of law applicable to the case before them, unless the parties to such issue or their counsel differ in opinion as to the same; or one of the parties or counsel shall ask the charge of said judge to be given upon some point in controversy in said issue, which shall be distinctly specified in writing by the party asking such charge; and the judge shall charge to no other point than that to which his opinion is required.” Laws of Mississippi, 407. In this case the judge did comment on the evidence. He first determined the plea of justification to be evidence, and then by way of comment, without being asked, told the jury they could “ take it into consideration in aggravation of damages.” And in this case, too, the judge gave his opinion “ on a point to which” it was not required; about which, so far as appears, the counsel did not differ: which opinion was wholly uncalled for, illegally given, and was not law.
    In Davis v. Tiernan & Co. 2 Howard, 804-5, this point is directly decided. The judges say, “ But as the charge was uncalled for, it is a perfect violation of the statute.”
    An inspection of the record will show that not only the law of the case, but also its merits requires a new trial to be granted. The record shows, and it is assigned for error, that after the cause was set for a certain day, and not called up or disposed of on that day, the defendant was afterwards forced into a trial without notice, in the absence of his witnesses, who lived, as the record shows, in a different county; add was denied even the poor privilege of making an application for a continuance. As however the errors set forth herein- to which the attention of the court is especially invited, are considered in themselves sufficient to reverse the judgment, the other errors will not be further pressed.
    G. S. Yerger for defendant.
    1. We think the charge clearly correct. There is some conflict of authority, as to whether the plea of justification, when filed with the plea of not guilty, is not evidence of the speaking of the words, or in other words the admission contained in the plea of justification, is evidence under the general issue. But I am decidedly of opinion that the pica of justification is not evidence of the speaking under the general issue, so as to supersede the proof of witnesses. But the .question here is,not-whether the plea of justification is evidence of speaking; but, when the words are proved as laid in the declaration, the question is, whether deliberately filing the plea of justification and not sustaining it, is not a fact to show the quo animo, or intention of the party when he spoke the words as proved. Surely it is. ■
    The defendant speaks the words ,of slander, and he after-wards deliberately affirms on record, that he did speak them, and they are true. It is proved they are untrue. Does not this deliberate affirmation' on record show that he did not speak them through misapprehension, or innocently, but with bad motives ? Surely it does.
    In the case of Kennedy v. Gifford, 19 Wendal, 296, after suit brought, the . defendant repeated the charge; and averred it to be true. The court held the repetition of the words and affirmation of their truth were good evidence to show the quo animo with which the words were spoken, although repeated after suit brought. Surely if he puts the repetition on record, in the shape of a plea, and fails to sustain it, it is a great deal worse. If it is evidence in .the one. case, it suiely is in the other.
    In 3 Massachusetts, 546, the point is so decided. And Chi tty, in his pleading, lays down this rule, thus: “It is not advisable to justify that the words are true, unless the. plea can be supported by indisputable testimony, because such a justification, when ineffectual, will in general materially enhance the damages.” See also 2 Selwyn, Nisi Prius, 440, 441.
    2. But suppose the judge was mistaken, will the judgment be reversed ? Surely not. The error to reverse must be material; for when it is not, it will not be reversed.. Now the judge said, the plea of justification, unsupported, was evidence of the intent, with which the words were spoken, i, e.. that they were spoken maliciously. Npw in order to make the charge material, the bill of exceptions must show, that the defendant offered evidence to ' show that the words were spoken by'mistake, or in a sense not malicious; for the general rule is, “that when actionable words are spoken/’ the law implies malice, or an intention to injure. In this case the words were proved; the law, therefore, independent of the plea, or other evidence, imputes the intention, from the fact of their being actionable. Vide 2 Starkie Ev. 461. The law is expressly laid down, (2 Starkie, 461,) that when the words spoken are illegal, or actionable, no extrinsic proof of malice or intent is necessary, and that malice or an evil intent in such case is an inference of law. In this case, it is not- pretended that any evidence was offered, or pretended to be offered, to rebut the malicious intent; if so, the charge of the court was wholly gratuitous and unnecessary, and did nothing more than the law done without it.
    It has, accordingly, been held that where erroneous instructions have positively been given or refused, yet if the verdict is according to law and evidence on the whole case, a new trial ought not to be granted. Thomas & Wife v. Tanner, 6 Monroe, 61. Again, to grant a new trial for misdirection, it must appear that the jury were, in consequence of such misdirection, induced to come to a wrong conclusion. Duke of Newcastle v. Broxton, 1 Neveli & Manning. 4 Chitty’s General Practice, 41. The charge in this instance was, that the plea was evidence of intent. Suppose it was not, still the speaking of the words afforded the same evidence.
    Suppose then the judge had not given the charge, that the plea of justification was evidence of intention, the record shows that the j ury would have been bound to find the same way they did, because the words being proved, the intention with which they were spoken, is an inference of law, unless rebutted. The charge, therefore, has not varied the case in the least particular. Without it, the jury, by the law, must have found precisely the same way, and when that is the case, an erroneous abstract principle of law advanced by the judge, will not be sufficient to reverse.
   Mr. Justice Tuottek

delivered the opinion of the court:

The errors which have been assigned resolve themselves into the question, whether the instructions of the court, as set forth above, are in accordance with the law. It is insisted on the part of the plaintiff in error, that under the statute of this state, which allows the defendant in any action to plead as many different matters of defence as he may choose, if several pleas in bar are pleaded, each of them is treated and operates as if it were pleaded alone, and that one cannot be taken in to help or destroy another, but that every plea must stand or fall by itself. And, consequently, that the statements in a special plea of justification, cannot be given in evidence under the general issue, in the action of slander or any other. And that not being admissible to prove the speaking of the words in the action of' slander, it is not admissible for any other purpose.

There can be no doubt that the plea in justification, when accompanied by the general issue, cannot be given in evidence to support that issue on the part of the plaintiff; for that would defeat the very object of the statute, by rendering the plea of not guilty an absolute nullity. And accordingly it has been uniformly held, both in England, under the statute of Anne, and in this country, where similar statutes have been enacted, that the proof of one issue is not dispensed with by any admissions in another plea. And that the plea of justification, in actions of slander, does not destroy the effect of the plea of not guilty. It is true that the supreme court of Massachusetts have in several cases decided differently. 3 Mass. Rep. 553. 15 do. 48, 1 Pick. 1. 5 Pick. 303. But we apprehend that that court stands alone in the opinion thus maintained, and that no state in the Union has made a similar decision. On the contrary, it stands opposed to the uniform practice under the act of Anne, in'England, and to the whole weight of British, as well as American adjudications. Gould’s Pl. 442. Cilley v. Jenness, 2 N. Hamp. Rep. 89. 1 D. & E. 118. 5 Serjeant & Rawle, 411. 5 East, 463. 5 Car. & Payne, 247. 2 Phil. Evid. 96. But this is not the precise question presented by the record, in the present case. For the bill of exceptions shows that the judge, in charging the jury, stated explicitly, that the statements in the special plea were not admissible to prove the speaking, of the slanderous words, but that they were admissible to show the quo animo or intent with which they were spoken, and might be taken into consideration in aggravation of damages. This was perhaps unnecessary, as the law imputes malice or an evil intention in all cases, when words actionable in themselves are spoken, and no proof is offered to counteract this presumption.

When a man in the heat of passion or in confidence, or by mistake, utters words imputing crime to another, he is surely not so guilty, or deserving the same punishment, as he who upon mature reflection, deliberately repeats the defamation, in open court, before the whole country, and writes it upon the public records. And hence it has been decided that when the defendant has justified the slander, he shall not be permitted after it has been proven upon him by the plaintiff, to offer proof in mitigation, such as has been just stated. 3 Mass. Rep. 553. And whether that decision upon that precise point be correct or not, yet as in the case at bar no proof was offered to disprove malice, the law inferred it from the very fact of uttering the slander. To permit the plaintiff to use the special plea as evidence of malice, does not militate against the rule that each plea must stand or fall by itself. It is the same thing as urging its statements in aggravation of damages, which the courts have always allowed.

In the case of Lea & Wife v. Robertson, 1 Stewart’s Alabama Rep. 138, the defendant filed the general issue of not guilty, and also a special plea in justification. And after he had failed in his proof, he proposed to withdraw the special plea, but the court refused to permit him, and instructed the jury, that they might take it into consideration in aggravation of the damages, and the supreme court sustained the opinion of the judge who gave the instruction. This is decisive of the present question, for the plea can only go to aggravate the damages upon the principle that it is indicative of malice.

The exception against the instructions of the court, upon the ground that they were uncalled for. under the act of 1833, is not, as we conceive, supported by the record. The defendant asked the judge to instruct the jury that the special plea was not evidence of the speaking of the words, or of the intent, &c., and the court responded, by stating to the jury that it was not evidence of the speaking, but of the intent, and added what was included in the foregoing member of the charge, that it might be taken into consideration in aggravation of damages. To this we see no objection.

Let the judgment be affirmed.  