Newbit v. Statuck , 35 Me. 315 ( 1853 )

Rice, J.

— This is an action on the case for slander. Defence, that the words spoken were true. Complaint is made that the Judge who presided at the trial, after instructing the jury that the burden of proof was upon the defendant to satisfy them that the allegations, in justification, contained in his brief statement were true, also instructed them that, “ if they were left in doubt and uncertainty respecting them, the defence contained in the brief statement would fail.”

Without, at this time, going into the consideration of distinctions supposed to exist between the terms “preponderance of evidence,” “ satisfactory evidence,” and that degree of evidence which shall exclude “all reasonable doubt,” it is sufficient to say, that upon principle and authority, in actions of slander, wherein the allegation in the writ is, that the plaintiff has been charged with perjury, the defendant, to sustain a plea of justification, must give as conclusive proof as would be necessary to convict the plaintiff of perjury on an indictment. Gants v. Vinard, 1 Smith, 287; Woodbeck v. Kellar, 6 Cow. 118; Lanter v. McEwen, 8 Bl. 495; Byrket v. Manahan, 7 Bl. 83; 2 Yerg. 235. This instruction is not therefore open to objection.

Objection is also taken to the instruction that the testimony of the plaintiff on a former trial, which was introduced in this case by the defendant, might be considered by the jury as evidence in this case. Such a result legitimately and necessarily follows from the rule stated above. If the plaintiff were on trial for perjury, and one witness only were produced to swear that his testimony was false, a jury would not be authorized to convict without additional evidence, because the case would be in equilibrium, being oath against' oath, and both given under circumstances where the obligation to speak the truth was alike binding. Such is the rule universally recognized in this class of prosecutions.

The requested instruction was properly withheld. When words are actionable in themselves, it is not necessary to alledge or prove special damage. In such cases, that some damage has been sustained, is an implication of law, and it is for the jury to determine the amount, having reference to the degree of malice exhibited by the defendant, and the injurious consequences necessarily resulting to the plaintiff.

Exceptions overruled.

Wells, Howard and Hathaway, J. J., concurred.