Baker v. Wilkins , 3 Barb. 220 ( 1848 )

By the Court,

Parker, J.

The defendant offered to prove the truth of the slanderous words alleged in the declaration, which evidence was rejected by the referees. It is now argued that this evidence was inadmissible, because the notice stated that such facts would be proved “in mitigation of damages,” not m. justification. I do not think this is a sufficient ground for excluding the evidence. The plaintiff was fully apprized, by the notice, of the facts the defendant proposed to prove. The effect of such evidence was a matter of law, and not of fact, and need not have been stated in the notice. The plaintiff could not have been prejudiced by the words in the notice above quoted, and they may be rejected as surplusage.

The facts offered to be proved would have constituted an entire defence to a part, if not all, of the words spoken. They would have established the existence of the same crime imputed to the plaintiff. I see no good reason for saying that the words charged imputed a felony, and that the facts offered to be proved amounted only to a misdemeanor. The offence charged, as described by the defendant, was a misdemeanor, (2 R. S. 694, § 20;) and the opinion expressed by him, that it was punishable by imprisonment in the state prison, would not change the character of the offence, so as to make it a felony, under the statute. (2 R. S. 661, § 9.) The defendant understood perfectly the nature of the crime charged upon the plaintiff, but not the kind of punishment to be inflicted upon the offender.

It is also said that more was offered to be proved than was set forth in the notice. This is true. But it is equally clear that each part of the evidence offered was objected to and excluded. It appears by the case that the referees excluded the evidence offered, “ and every part thereof.” We must therefore understand that each part of the evidence was separately offered, objected to, and excluded. It is unnecessary to examine the other points made by the defendant.

The report of the referees must be set aside, and a new trial granted. Costs to abide the event.