49

tending or leading up to the speaking of the words, or in reference to which the words were spoken, that are material in determining the meaning, and they may also be competent, in some instances, for other purposes as well. It is also proper, as a rule, to admit in evidence the entire conversation or publication in the course of which the words alleged to be defamatory were used.50 And where the publication upon which the action is based refers to some other publication the latter may also be admissible.51 It is held in some cases that an innuendo does not admit of being sustained by evidence,52 but upon this question and upon the particular question as to whether evidence is admissible of the sense in which the hearers or readers understood the words, there is a conflict among the authorities. Many courts have taken the view that it is competent for the witnesses who heard or read the words, where they are ambiguous, to testify as to the sense in which they understood them;53 but a witness cannot testify as to his understanding of the meaning of the defendant, and that such

49 Williams v. Cawley, 18 Ala. 206; Barton v. Holmes, 16 Iowa 252; Kidd v. Ward, 91 Iowa 371, 59 N. W. 279.

"Extrinsic evidence is often admissible, for instance, on the question of malice, and, on the other hand, in mitigation or justification; Childers v. San Jose &c. Co., 105 Cal. 284, 38 Pac. 903, 45 Am. St. 40; Georgia v. Bond, 114 Mich. 196, 72 N. W. 232; Provost v. Brueck, 110 Mich. 136, 67 N. W. 114; Stowell v. Beagle, 57 Ill. 97; McKee v. Ingalls, 5 Ill. 30; Commonwealth v. Damon, 136 Mass. 441; Seip v. Deshler, 170 Pa. St. 334, 32 Atl. 1032.

50 Cooke v. Hughes, R. & M. 112, 21 E. C. L. 393; Searcy v. Sudhoff, 84 Ill. App. 148; Moorehead v. Jones, 2 B. Mon. (Ky.) 210, 36 Am. Dec. 600; Newbraugh v. Curry, Wright (Ohio) 511; Whitehead v. State, 39 Tex. Cr. App. 89; Winchell v. Strong, 17 Ill. 597; Newman v. Stein, 75 Mich. 402, 42 N. W. 956, 13 Am. St. 447.

51 Young v. Gilbert, 93 Ill. 595;

see also, Weaver v. Lloyd, 1 Car. & P. 295.

52 Dickson v. State, 34 Tex. Cr. App. 1, 28 S. W. 815, 53 Am. St. 694, and note; State v. Henderson, 1 Rich. L. (S. Car.) 179; Van Vechten v. Hopkins, 5 Johns. (N. Y.) 211, 4 Am. Dec. 339, and note; but see, McLaughlin v. Russell, 47 Ohio 475; Russell v. Kelley, 44 Cal. 641, 13 Am. R. 169; Smawley v. Stark, 9 Ind. 386; Enquirer Co. v. Johnston, 72 Fed. 443; Farrand v. Aldrich, 85 Mich. 593, 48 N. W. 628; People v. Ritchie, 12 Utah 180, 42 Pac. 209.

53 Chamberlin v. Vance, 51 Cal. 75; Jarman v. Rea, 137 Cal. 339, 70 Pac. 216; Binford v. Young, 115 Ind. 174, 16 N. E. 142; Nidever v. Hall, 67 Cal. 79, 7 Pac. 136; Nelson v. Borchaines, 52 Ill. 236; Barton v. Holmes, 16 Iowa 252; Hess v. Fockler, 25 Iowa 9; Miller v. Butler, 6 Cush. (Mass.) 72, 52 Am. Dec. 768; Tompkins V. Wisener, 1 Sneed (Tenn.) 458; Smart v. Blanchard, 42 N. H. 137.

54

meaning must be decided upon by the jury from the words themselves or other facts and circumstances given in evidence. If the words are clear and unambiguous, it would seem that no such evidence would be competent. But, whether evidence of the understanding of the hearers is admissible to show the party to whom they understood the words to refer, or not, proper extrinsic evidence identifying the plaintiff as such party and showing that they must or would naturally be taken as referring to him, by those who heard or read them, would seem to be admissible where the words themselves do not show to whom they refer.55

§ 2455. Hearsay Evidence.-Where there is a denial that the libelous or slanderous statement was uttered, the issue under such denial is not whether the statement is true, but whether it was really made, and, as elsewhere explained, testimony by a witness that he heard it uttered is not hearsay but is original evidence of a fact in issue.56 It does not, therefore, fall within the rule excluding hearsay. But as to matters properly within the rule, it applies, in general, in cases of libel and slander as well as in other cases.57

§ 2456. Justification-Truth.-It is said that "the presumption respecting a libelous charge, in the absence of any statute upon the subject is that it is false and without sufficient excuse. A defendant, whether in a civil action or a criminal prosecution, who desires to urge that what he said was true, must, therefore, assume the burden of establishing it by competent and sufficient evidence."58 This is the

Snell v. Snow, 13 Metc. (Mass.) 278, 46 Am. Dec. 730; Gribble v. Pioneer-Press Co., 37 Minn. 277, 34 N. W. 30; Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020, 43 Am. St. 583; Pittsburg &c. R. Co. v. McCurdy, 114 Pa. St. 554, 8 Atl. 230, 60 Am. R. 363; Cresinger v. Reed, 25 Mich. 450.

55 Smith v. Sun Pub. Co., 50 Fed. 399; Russell v. Kelly, 44 Cal. 641, 13 Am. R. 169; People v. Ritchie, 12 Utah 180, 42 Pac. 209; Farrand v. Aldrich, 85 Mich. 593, 48 N. W. 628; Colvard v. Black, 110 Ga. 642, 36 S. E. 80; Knapp v. Fuller, 55 Vt. 311,

45 Am. R. 618; Wilson v. Fall River Daily Herald, 143 Mass. 581, 10 N. E. 733; Chubb v. Westley, 6 Car. & P. 436, 25 E. C. L. 474; Cook v. Ward, 4 Car. & P. 99, 19 E. C. L. 117; Odgers Lib. & Sl. 567.

58 Vol. I, § 323.

57 McDuff v. Detroit &c. Co., 84 Mich. 1, 47 N. W. 671, 22 Am. St. 673; People v. Thornton, 74 Cal. 482, 16 Pac. 244; see Vol. I, § 323.

58 McAllister v. Detroit Free Press Co., 76 Mich. 338, 15 Am. St. 369, note; citing, Russell v. Anthony, 21 Kans. 450.

general and prevailing rule, and if justification is the only plea, the defendant has the burden of proof, and the right to open and close.5 At common law and in most of the States the truth of the charge is a complete defense in civil actions, and, in many of them, the truth is admissible in evidence and in criminal prosecution also, and may, under certain circumstances, constitute a good defense. In civil actions, according to the weight of authority and the better reason, even though the charge imputes to the plaintiff the commission of a crime, it is sufficient for the defendant to satisfy the jury of the truth of his justification by a preponderance of the evidence, but there are a few authorities which hold that he must prove the plaintiff's guilt beyond a reasonable doubt.62

61

§ 2457. Evidence to prove or rebut justification.—Mere hearsay or evidence of general repute is generally incompetent in justification of a charge imputing a crime where it would be inadmissible in a criminal prosecution. But it has been held otherwise where the

63

50 Tull v. David, 27 Ind. 377; McCoy v. McCoy, 106 Ind. 492, 7 N. E. 188; Ransone v. Christian, 56 Ga. 351; Stith v. Fullinwider, 40 Kans. 73, 19 Pac. 314; Nelson v. Wallace, 48 Mo. App. 193; Finley v. Widner, 112 Mich. 230, 70 N. W. 433; Clark v. Bohms, (Tex. Civ. App.) 37 S. W. 347.

Go See, State v. Rice, 56 Iowa 431, 9 N. W. 343; State v. Haskins, 109 Iowa 656, 80 N. W. 1063, 77 Am. St. 560; Commonwealth v. Snelling, 15 Pick. (Mass.) 337; Castle v. Houston, 19 Kans. 417, 27 Am. R. 127; Drake v. State, 53 N. J. L. 23, 20 Atl. 747; Rutherford v. Paddock, 180 Mass. 289, 62 N. E. 381, 91 Am. St. 282, note; Warner v. Clark, 45 La. Ann. 863, 21 L. R. A. 502, 508, note.

1 Spruil v. Cooper, 16 Ala. 791; Hearne v. De Young, 119 Cal. 670, 52 Pac. 150, 499, 958; Riley v. Norton, 65 Iowa 306, 21 N. W. 649; Wintrode v. Renbarger, 150 Ind. 556, 50 N. E. 570; People v. Even

ing News, 51 Mich. 11, 16 N. W. 185, 691; Owen v. Dewey, 107 Mich. 67, 65 N. W. 8; Sloan v. Gilbert, 75 Ky. 51, 23 Am. R. 73; McBee v. Fulton, 47 Md. 403, 28 Am. R. 465; Edwards v. Knapp, 97 Mo. 432, 10 S. W. 54; Bell v. McGinness, 40 Ohio St. 204, 48 Am. R. 673; McClaugherty v. Cooper, 39 W. Va. 313, 19 S. E. 415; Rutherford v. Paddock, 180 Mass. 289, 62 N. E. 381, 91 Am. St. 282, note, where the authorities on both sides are collected.

62 Rutherford V. Paddock, 180 Mass. 289, 62 N. E. 381, 91 Am. St. 282, note. The rule in Illinois and Indiana to this effect has been changed by statute; Wintrode v. Renbarger, 150 Ind. 556, 50 N. E. 570; Tunnell v. Ferguson, 17 Ill. App. 76; Becherer v. Stock, 49 Ill. App. 270.

es Finley v. Widner, 112 Mich. 230, 70 N. W. 433; State v. Butman, 15 La. Ann. 166; State v. White, 7 Ired. L. (N. Car.) 180.

charge is of general bad character. And in such cases it has been held that even specific acts going to establish the truth of the charge may be shown in evidence. The evidence in justification is generally required to show the existence of every element essential to the existence of the crime charged; and, where the defendant has introduced evidence in support of his plea of justification the plaintiff may introduce any competent evidence tending to rebut it. It is not a justification to show that a rumor existed of the truth of the matter charged and that the defendant believed it.88 Nor is the fact that the defendant was intoxicated when he made the charge or that he made it in the heat of passion, any justification; nor is the fact that he afterwards apologized or retracted it, although such fact may be admissible in mitigation. It has also been held, and properly, we think,

that the fact that the plaintiff had not complained to the defendant of the libel or slander or brought suit or called him to account for other charges of the same kind is not admissible in justification;"1 and that, where the language is plain, evidence of the defendant's construction of them, and secret intent not to charge a crime, or the like, is incompetent to prove a justification.72 But, while this rule is not denied,