Winchell v. Strong ( 1856 )

Catón, J.

That the explanation which the defendant below offered to prove on the trial, and which was rejected, was proper, as tending to explain the meaning of the words uttered .as charged in the declaration, there can be no doubt, if that explanation was made in such connection with the charge as to form a part of the same transaction or interview. To determine this properly, may frequently be a matter of some difficulty. The explanation should no doubt be a part of the same interview or conversation with the charge, but it need not be in the same breath or sentence, nor yet in the same speech. Regard must be had to the nature and character of the conversation, in order to determine the question. Where substantially the same auditors are present and the subject matter, in the discussion of which the charge is made, is still under consideration or dispute, the whole must be considered as the same conversation, and an explanation made in any part of it is so connected with the charge as to be admissible, although a very considerable time and much conversation may intervene between the charge and explanation. This may be especially so, when the charge is made at a public meeting where the subject, in reference to which the charge is made, is undergoing discussion, as was the case here. In such a case, while the particular subject is under discussion, and the parties are present and taking part in it, the conversation may be said to continue.

This charge was made at a public meeting where the subject of a certain bridge, which Strong had built, was under discussion. In the course of the discussion a controversy arose between these parties, in which the defendant accused Strong of stealing the timber, with which he had built the bridge. The witness states, “ That at the same meeting, and after the speaking of the words, but before witness left the meeting, defendant made a statement to plaintiff respecting the meaning of the words. That such, statement might have been fifteen or twenty minutes after the speaking of the words.” This statement the defendant offered to prove, but it was ruled out by the court. In this we think the court erred. We are well satisfied that it should have gone to the jury as a part of the same transaction or conversation in which the charge was made, and that the statement and charge should both have been considered by the jury together, for the purpose of ascertaining what was the real intention of the defendant when he used the words charged. If the jury should believe that the defendant only intended to charge the plaintiff with a trespass, and so explained himself to the party and those who heard the original charge, then, the whole being taken together, the averments in the declaration were not sustained; but if the jury should believe that the defendant, when he uttered the words, actually intended to charge him with a larceny, and that he subsequently changed his mind as to what charge he would make against the plaintiff, and for the purpose of avoiding the responsibility of the original charge, and to falsely create the impression that he, all the time, intended to charge only a trespass, he made the statement which he offered to prove, then such statement or explanation would not change the legal effect of the original charge. The words as uttered, with the actual intent to charge a felony would still be actionable. We think the testimony should have been admitted.

The judgment must be reversed and the cause remanded.

Judgment reversed.