Carpenter v. Bailey , 53 N.H. 590 ( 1873 )

Sargent, C. J.

The law applicable to this case was very fully considered and stated in an early Netv Hampshire case, in which the opinion was delivered by Parker, J., in 1837, and the more recent decisions have not changed the law that we are aware of, so far as the questions involved in this case are concerned. State v. Burnham, 9 N. H. 34, was an indictment for libel; but it was held that, so far as the principles of the defence were concerned, there was-no substantial difference between a criminal and a civil case.

If the end to be attained by a publication is justifiable^ — as, if the object is the removal of an incompetent officer, or to prevent the election of an unsuitable person to office, or to give useful information to the community, or to those who have a right and ought to know, in order that they may act upon such information, — the occasion is lawful; and the occasion being one in which matter of such nature may properly be published, the party making the publication may either justify or excuse it.

To constitute a justification, the party must prove the truth of the matter alleged, and the justification must be as broad as the charge. It is no sufficient justification to show that a part of the matter is true.

If the defendant cannot justify by showing the truth of:thc matter charged, he may excuse the publication by showing that it was made upon a lawful occasion, upon probable cause, and from good motives.

He also adds, on page 43, that in a civil case matter in justification should be pleaded, or notice of it given by a brief statement. But that matter in excuse merely, it is apprehended, is properly given in evidence under the general issue, although it is said that it may be pleaded ; — and see authorities.

It is also said that matter in excuse in a prosecution for libel is where the defendant, upon a lawful occasion, proceeded with good motives upon probable grounds, — that is, upon reasons that were apparently good,-but upon a supposition which turns out to be unfounded. This is a very different thing from showing the actual truth of the allegations : where that is proved, with a proper occasion, it is a justification without regard to motives; but where the statements made prove false, the defendant needs to show not only a proper occasion, but a good motive also, — for, if the matter be untrue and the motive bad, how could the end be justified or even excused ? But ■when the occasion is proper, one may be excused for stating what proves to be untrue, if he had probable cause to believe it true, and spoke it from good motives;— see authorities on page 45.

So, in Palmer v. Concord, 48 N. H. 217, it is said, by Smith. J., that most of what are called “ privileged communications” are conditionally, not absolutely, privileged. The question is one of good faith, or motive, and can be settled only by a jury. A court cannot rule that a communication is privileged, without assuming the conditions on which it is held to be privileged, namely, that it was made in good faith, for a justifiable purpose, and with a belief, founded on reasonable grounds, of its truth ; — and see cases cited.

In the case before us, the occasion would be a lawful one, provided the motive was good, and there was probable cause. And the question is, whether the mere fact, that* the defendant had been informed and believed that a fact was so, is equivalent to having probable cause to believe it to be so. And we think it could not be assumed that it was so. A person might be informed of a fact by one in whom ho might, for some special reason, have confidence, but to whom no one else would give the slightest credence; and a jury would readily find that a belief in that case was founded upon information which would not amount to probable cause for the belief of any man of ordinary capacity. The question for the jury would be, not whether the defendant believed it, but had he probable cause to believe it ? There might be belief without probable cause for it; and hence it would not be sufficient to allege merely information and belief, because that might not, in a given case, amount to probable cause. The fourth plea is substantially correct in form, and goes as far as the rule thus laid down will warrant; and we think this third plea is insufficient.

Demurrer sustained.