Skinner v. Powers , 1 Wend. 451 ( 1828 )

By the Court,

Savage, Ch. J.

It cannot surely be necessary to go into an examination of authorities to shew, that the publication in a newspaper of rumors, is not justified by the fact that such rumors existed. It is proper in mitigation, and in that way the defendant had the benefit of it. The law relating to the publication of a true history of legislative or judicial proceedings, has no connection with this case. Had the defendant simply published the resolutions of the assembly, and the discussions in that house, he would have been within the cases cited.

On the second question, there is no more doubt. A charge of misconduct of a specified kind, is not justified by proving the plaintiff guilty of misconduct of a similar character. If the plaintiff is charged with perjury in the libel, the defendant cannot prove him guilty of larceny.

x Nor can I doubt of the correctness of the judge’s charge, when he stated that the defendant’s justification must be as broad as the charge; and that proof of the truth of one out of many charges did not constitute a justification. Such a; circumstance would have its effect in mitigation ; but the defendant charges the plaintiff in the libel with six different acts of misconduct. In his plea, he justifies them all, and says' upon the record, that they are all true; and several more are inserted in the plea. Nothing can be more clear, than that proving one charge out of the six, does not verify his plea, I am therefore of opinion that a new trial be denied.