{ "id": 6095917, "name": "Zalmon Young v. James Bennett", "name_abbreviation": "Young v. Bennett", "decision_date": "1842-12", "docket_number": "", "first_page": "45", "last_page": "50", "citations": [ { "type": "nominative", "cite": "4 Scam. 43" }, { "type": "official", "cite": "5 Ill. 43" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "62 Ill. 121", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2609598 ], "pin_cites": [ { "page": "124" } ], "opinion_index": -1, "case_paths": [ "/ill/62/0121-01" ] }, { "cite": "2 Gilm. 725", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2560569 ], "opinion_index": -1, "case_paths": [ "/ill/7/0725-01" ] }, { "cite": "86 Ill. 461", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2771360 ], "pin_cites": [ { "page": "462" } ], "opinion_index": -1, "case_paths": [ "/ill/86/0461-01" ] }, { "cite": "67 Ill. 404", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 820075 ], "opinion_index": -1, "case_paths": [ "/ill/67/0404-01" ] }, { "cite": "45 Ill. 23", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 424972 ], "pin_cites": [ { "page": "24" } ], "opinion_index": -1, "case_paths": [ "/ill/45/0023-01" ] }, { "cite": "20 Ill. 326", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "pin_cites": [ { "page": "329" }, { "page": "329" } ], "opinion_index": -1 }, { "cite": "14 Ill. 459", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2587056 ], "opinion_index": -1, "case_paths": [ "/ill/14/0459-01" ] }, { "cite": "14 Johns. 234", "category": "reporters:state", "reporter": "Johns.", "opinion_index": -1 }, { "cite": "9 Johns. 45", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 372271 ], "opinion_index": -1, "case_paths": [ "/johns/9/0045-01" ] }, { "cite": "10 Johns. 443", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 2135947 ], "opinion_index": -1, "case_paths": [ "/johns/10/0449-01" ] }, { "cite": "2 Wend. 352", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 3516151 ], "opinion_index": -1, "case_paths": [ "/wend/2/0352-01" ] }, { "cite": "3 Johns. 528", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 2129758 ], "opinion_index": -1, "case_paths": [ "/johns/3/0528-01" ] }, { "cite": "2 Scam. 249", "category": "reporters:state", "reporter": "Scam.", "opinion_index": -1 }, { "cite": "4 Wend. 248", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "13 Johns. 82", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 374430 ], "opinion_index": -1, "case_paths": [ "/johns/13/0082-01" ] }, { "cite": "10 Johns. 447", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 2135883 ], "opinion_index": -1, "case_paths": [ "/johns/10/0453-01" ] }, { "cite": "4 Wend. 659", "category": "reporters:state", "reporter": "Wend.", 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"Penn.", "opinion_index": 0 }, { "cite": "5 Munf. 16", "category": "reporters:state", "reporter": "Munf.", "case_ids": [ 6722980 ], "opinion_index": 0, "case_paths": [ "/va/19/0320-01" ] }, { "cite": "6 Munf. 465", "category": "reporters:state", "reporter": "Munf.", "case_ids": [ 6728974 ], "opinion_index": 0, "case_paths": [ "/va/20/0810-01" ] }, { "cite": "4 Conn. 408", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 12130974 ], "opinion_index": 0, "case_paths": [ "/conn/4/0408-01" ] }, { "cite": "1 Root 346", "category": "reporters:state", "reporter": "Root", "case_ids": [ 6762030, 6762015 ], "opinion_index": 0, "case_paths": [ "/root/1/0346-02", "/root/1/0346-01" ] }, { "cite": "6 Mass. 514", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2000733 ], "opinion_index": 0, "case_paths": [ "/mass/6/0423-02" ] }, { "cite": "3 Mass. 546", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2005738 ], "opinion_index": 0, "case_paths": [ "/mass/3/0476-01" ] }, { "cite": "3 Pick. 376", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2010242 ], "opinion_index": 0, "case_paths": [ "/mass/20/0376-01" ] }, { "cite": "1 Pick. 1", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2070929 ], "opinion_index": 0, "case_paths": [ "/mass/18/0001-01" ] } ], "analysis": { "cardinality": 738, "char_count": 15672, "ocr_confidence": 0.486, "pagerank": { "raw": 3.7503294517754947e-07, "percentile": 0.8951987162185904 }, "sha256": "1f3b13936cd095cb01f8cca8b3db6f7a689863673bbb7b2f19ee071fb00f8b29", "simhash": "1:e8e3c6e97e35adf9", "word_count": 2712 }, "last_updated": "2023-07-14T20:32:49.187861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Zalmon Young v. James Bennett." ], "opinions": [ { "text": "Sc ates, Justice,\ndelivered the opinion of the court: Case for slander. The first eighteen counts charge the speaking of the following words, by the plaintiff in error, to wit: \u201c I have lost some wheat, and I know that Bennett stole it.\u201d \u201cI have lost twenty-five or thirty bushels of wheat, and I know that Bennett stole that much from me; for I know that he will steal, and all the neighbors know it.\u201d\nThe two last counts charge the speaking of the following words, to wit: \u201cI know that the Bennetts will steal, for they stole my corn, when I was gone off with Martin; for they had nothing to give their oxen but wheat bran; and I know that the way they worked their oxen, they could not have kept them looking so fat, if they fed them on nothing but wheat bran.\u201d The first count contained the usual inducement of good character; and all the other counts proper averments of innuendoes.\nThe general issue was pleaded to the whole declaration, and to the first eighteen counts a special plea of justification that the plaintiff below did steal one bushel of wheat; upon which issue was taken.\nThe jury found for the plaintiff. The defendant moved for a new trial, because of the admission of improper testimony on behalf of the plaintiff; and the exclusion of proper testimony on behalf of the defendant; and because of improper instructions by the court.\nThe motion was denied, and a bill of exceptions allowed and sealed, containing a part of the evidence.\nAs the bill of exceptions does not purport to contain all the evi-deuce, I will only notice those portions of it upon which errors are assigned for admitting improper and excluding proper testimony.\nThe bill of exceptions states, that the plaintiff introduced several witnesses, whose testimony tended to prove the speaking of the words charged in the several counts of the declaration; among others, one Jacob Bruner, who testifies to numerous conversations with the defendant; in one or another of which, he spoke, in substance, the words laid in the several counts.\nUpon cross examination, the witness was asked by the defendant below, whether he, the witness, had ever said to the defendant, in any of those conversations, that Bennett stole the wheat; and that if the defendant did settle with Bennett, that he should-always believe that Bennett stole it; whether he did not say to the defendant that he knew that Bennett stole it; [* 45] whether he did not say to the defendant, that when Bennett went after the harrow on Saturday, that he stole Young\u2019s wheat; whether he had ever said to F. W. Watkins, that he knew that Bennett stole Young\u2019s wheat; whether he had not said the same to Andrew Brown; whether he said the same to Spencer Myers, when he went to serve the search warrant; whether it was not a principle of action with him to go into a court of justice, and swear false against a man with whom he had a difficulty, to get revenge; and whether he had ever said this to Nancy Brown. To all these questions, and the evidence sought by them to be elicited, the plaintiff objected, and his objection was sustained. After calling other witnesses, whose testimony was given to prove the words, the plaintiff rested.\nThe defendant then called one Watkins, his brother-in-law, who testified that he was acquainted with Bruner\u2019s general character for truth and veracity in the neighborhood, and gave testimony tending to prove that it was bad. No further enquiry was made of the witness.\nOn cross-examination, the plaintiff offered to prove by Watkins, the speaking of the words charged in the declaration by the defendant, on other and different occasions than those testified to by the other witnesses. To this the defendant objected, and the objection was overruled.\nThe witness testified to the speaking of words charging the plaintiff with stealing the defendant\u2019s wheat. He further testified that he had never heard Bruner\u2019s truth and veracity, under oath, questioned; and that he had never heard but two persons speak of it; one was defendant\u2019s father-in-law, and the other he did not recollect. The plaintiff examined four other witnesses as to the speaking of the words. The court also permitted the defendant to ask Bruner as to what he' had said in relation to the testimony he should give in this suit; and also permitted the defendant to give evidence, by other witnesses, as to what he had said, with a view to contradict him.\nThe defendant offered to prove, by Watkins, that there was a report current in the neighborhood of the plaintiff, at the time the defendant charged him with stealing corn, that the plaintiff had stole the defendant\u2019s corn. He also offered to prove that previous to', and at the time of uttering the words charged, that the plaintiff\u2019s character was bad. To all this the plaintiff objected; and it was excluded by the court. To all these decisions, and to the denial of the motion for a new trial, the defendant excepted, and now assigns seven errors:\nFirst. In excluding evidence of the plaintiff\u2019s general character ;\nSecond. In excluding evidence of a story in the plaintiff\u2019s neighborhood, that he stole the defendant\u2019s corn;\n[*46] Third. In excluding the questions put by the defendant to Jacob Bruner, and the evidence sought to be elicited;\nFourth. In permitting the plaintiff to examine Watkins in chief, after having rested his case;\nFifth. In permitting the plaintiff to examine other witnesses in chief, after he had rested his case, and after the defendant had introduced testimony;\nSixth. In excluding proper testimony on behalf of the defendant, and admitting improper testimony on behalf of the plaintiff; and,\nSeventh. In refusing a new trial.\nAs the record does not contain all the evidence, it seems the hew trial was not asked on account of the insufficiency of the evidence; and the propriety of granting it must depend upon the solution of all, or some one, of the other errors assigned.\nIn the second assignment of error, the plaintiff in error contends that a particular report in the neighborhood that the defendant in error was guilty of stealing the plaintiff in error\u2019s corn, is admissible evidence in mitigation of damages, under the general issue ; there being no plea of justification to the two last counts.\nIt is the opinion of the majority of the court that it is not admissible. It has been so held in several of the states. 1 Pick. 1; 3 Pick. 376; 3 Mass. 546; 6 Mass. 514; 1 Root 346; 4 Conn. 408.\nIn Virginia, circumstances not amounting to a full justification are not admissible, in mitigation, under the general issue. 6 Munf. 465; and in 5 Munf. 16, the point was discussed but not decided,\nOne reason for excluding this evidence is, the great injustice in permitting a defendant to create such a report to the prejudice of the plaintiff, and then avail himself of it in mitigation of damages. And. so far as defendants might avail themselves of their own wrongful act, this reasoning is unanswerable. But in cases where the defendant is not the author of the report, the evidence would be on a similar footing with general repute, so far as tile defendant is concerned.\n1 am of opinion that such evidence is admissible; and Justice Treat concurs with me.\nWe found that opinion upon the following authorities:\n2 Stark. Ev. 469. and note 1: Earl of Leicester v. Walton, 2 Campb. 251; Cor. Mansfield, Ch. J.-v. Moor, 1 M. and S. 284 ; King v. Perrot, cited in 3 Eng. Com. L. 115; Williams v. Callendar, Holt C. 307, cited in 3 Eng. Com. L. 115; Mills et ux. v. Spencer et ux., Holt C. 533, cited in 3 Eng. Com. L. 177; Newsam v. Carr, 2 Stark. 69; 3 Eng. Com. L. 249; 1 Penn. 169; Cook v. Barkley, one judge dissenting; Calloway v. Middleton et ux., 2 Marsh. 372: 1 Birney 92; Buford v. McLuny, 1 Nott and McCord 268; Bailey v. Hyde, 3 Conn. 463.\nThe third error assigned questions the refusal of the court to permit certain questions to be asked the witness [* 47] Bruner.\nThe doctrine contended for on this point does not apply to such a case.\nThe general rule is, that where confessions or admissions are introduced by one party, the opposite party is entitled to the whole conversation.\nThe witness, in testifying to the defendant\u2019s conversations, inadvertently or incidentally introduced some of his own remarks. The plaintiff now insists that he is entitled to all the remarks and conversation of the witness. Such is not the rule or the right of the party. Where the defendant\u2019s answer to a question put by the witness, or another person, is sought to be introduced, and such answer could not be understood, or would be unintelligible,. without stating the question also, to which it was made, in such ease the question would be admissible, and in like cases. The questions put to the witness do not fall under this rule.\nThe fourth and fifth errors are alike, involving the same principle. Whether the plaintiff, after having rested his case, and after the introduction of testimony by the defendant, can cross-examine defendant\u2019s witnesses in chief, or call other witnesses in chief, rests in the sound discretion of the court.\nThe first and sixth errors involve the same principle, the exclusion of evidence of the plaintiff\u2019s general character.\nIt is the opinion of the court, that the evidence was admissible. It was objected to, because there was a special plea of justification. Mr. Starkie lays down the rule, that, \u201cgeneral evidence of bad character seems to be admissible, although the defendant has justified that the imputation is true; for if the justification should fail, the question as to the quantum of damages would still remain.\u201d 2 Stark. Ev. 470.\nThe decisions that evidence'of general bad character is admissible, under the general issue, in mitigation of damages, are almost uniform. 2 Stark. Ev. 216, 470, and numerous authorities there cited, both English and American. Contra. Foot v. Tracy, 1 Johns. 45, but since overruled; 2 Cowan 811. This is the rule in Connecticut, North and South Carolina, Massachusetts and Kentucky. In Vermont it seems to be otherwise. Smith v. Shumway, 2 Tyler 74.\nThe only diversity of opinion seems to be as to its admissibility in cases in which a plea of justification has been put in with the general issue.\nIn Snowden v. Smith (Devon Sum. Ass. 1811), Chambre, Justice, rejected such evidence, because the special plea was in. Cited in 2 Stark. Ev. 216-9. In a subsequent case of Tirkham v. Oxley, cited in Phil, on Ev. 189, Heath, Justice, allowed such evidence, where a plea of justication had been pleaded.\n[* 48] This decision meets the approbation of Mr. Starkie, and I think is founded in better reason and justice. If the issue on tire justification, and the quantum of damages were to be tried separately, such evidence would clearly be admissible in ascertaining the damages, after the plea of the justification had failed. Laying them together ought not to deprive the defendant of it. The court could instruct the jury how to apply it.\nIn the case of Mawby v. Barber (Lincoln Sum. Ass. 1826), Lord Tenterden, Ch. J., admitted such evidence as the safer course, although a plea of justification was in. And it would extend to the several actions involving character; as slander, libel, malicious prosecution, adultery, seduction, or breach of marriage promise. 2 Cowen 813.\nMany of the American decisions, however, are against its admission.\nIt is the opinion of the court that the judgment be reversed at the cost of the defendant in error, and the cause be remanded with direction to award a venire de novo.\nJudgment reversed.\nANONYMOUS.\nThe court decided that the cost of the transcript of the record \u2022from the court below should be taxed in the fee bill from this \u2022 court.\nWilson, Chief Justice, and Semple, Justice, were not present at the argument of this cause, and gave no opinion.", "type": "majority", "author": "Sc ates, Justice," } ], "attorneys": [ "O. Peters, for the plaintiff in error,", "Ii. BrowN, for the defendant in'error," ], "corrections": "", "head_matter": "Zalmon Young v. James Bennett.\nError io DeKalb.\nx. Slander \u2014 rumor in mitigation. In an action for slander, in charging the plaintiff with stealing, it is not admissible for the defendant to prove, under the general issue, in mitigation of damages, that there was a report in the neighborhood of the plaintiff,- that he had been guilty of stealing from the defendant,\n2. Evidence \u2014 rule as to whole conversation. The general rule is, that where confessions or admissions are introduced by one party, the opposite party is entitled to the whole conversation. And where the answer of a party to a question, by the witness or another person, is sought to be introduced, and such answer could not be understood, or would be unintelligible without stating the question also, the question is admissible; but this rule does not include what the witness may have said, in the conversation, to the defendant, any farther than his language may be necessary to understand what was said by the defendant.\n3. Trial \u2014 calling witness in chief after resting. It is a matter of discretion in the court, whether a plaintiff, after having rested his case, and after the introduction of testimony by the defendant, shall or shall not be permitted to examine defendant's witnesses in chief, or call other witnesses,\n4. Slander \u2014 bad character of plaintiff. In an action for slander, general evidence of the bad character of the plaintiff is admissible, although the defendant has justified that the imputation is true; for, if the justification should fail, the question as to the quantum of damages would still remain.\nThis cause was heard, in the court below before the Hon. John Deah Cat\u00f3n, at the September term, 1842. Verdict and judgment were rendered for the plaintiff for $250 damages. The defendant brought the cause to this court by writ of error. The facts appear in the opinion of the court.\nO. Peters, for the plaintiff in error,\nas to the point that the defendant should have been permitted to prove the general bad character of the defendant, cited 2 Cowen ,813; 4 Phil. Ev. 250, n. 3; 4 N. Y. Dig. 1041, \u00a7 \u00a7 163-7; Shirley v. Marsh, 7 Pick. 38; 1 Greenl. Ev. 498; 1 Stark. Ev. .162. As to the questions asked Bruner, and rejected by the court, 1 Greenl. Ev. 233, \u00a7 \u00a7 201, 218, 505-7.\nIi. BrowN, for the defendant in'error,\ncited 19 Wend. 296;-2 Stark. Ev. 471, note; Wheeler v. Shields, 2 Seam. 350; 4 Wend. 659; Dole v. Lyon, 10 Johns. 447; 1 Stark. Ev. 164; People v. Hank, 13 Johns. 82; 2 Phil. Ev., note 514, p. 734; [* 44] People v. Mather, 276; 4 Wend. 248; 2 Phil. Ev. 710; 2 Scam. 249; 3 Cowen 370; 2 Cowen 811; 3 Johns. 528; 2 Wend. 352; 7 Cowen 613; 5 Cowen 351; 10 Johns. 443; 9 Johns. 45; 14 Johns. 234; 8 Cowen 214.\nCases Citing Text. Truth of alleged slander cannot be proved in mitigation under general issue. Owen v. McKean, 14 Ill. 459. 460; Sheahan v. Collins, 20 Ill. 326, 329.\nIn action for libel defendants, being publishers of newspaper, cannot show prior similar publication to that complained of in another newspaper. Sheahan v. Collins, 20 Ill. 326, 329.\nUnder general issue defendant cannot prove, that plaintiff was generally suspected to be guilty of act charged upon him by alleged slander. Lehning v. Hewett, 45 Ill. 23, 24.\nEvidence of truth of alleged slander is not admissible in mitigation under general issue. Strader v. Snyder, 67 Ill. 404.410.\nNewspaper publisher sued for libel may show under general issue in mitigation, that he was misled by receipt of forged letters. Storey v. Early, 86 Ill. 461, 462.\nIf witness testifies to any part of conversation, party adversely afiected is entitled to whole conversation at time, but not to conversation occurring at another time. Hatch v. Potter, 2 Gilm. 725.\nIntroducing evidence after argument has begun, is in discretion of court. Goodrich v. City of Mononk, 62 Ill. 121, 124." }, "file_name": "0045-01", "first_page_order": 57, "last_page_order": 62 }