Obrázky stránek
PDF
ePub

and the evidence, and the Court shall be satisfied of the truth of such statement." In this case the State Court ruled that, under this statute, "it is not a test question whether the juror will have the opinion which he has formed from the newspapers changed by the evidence, but whether his verdict will be based only upon the account which may here be given by witnesses under oath." One of the defendants offered himself as a witness, and then objected to the extent of the cross-examination to which he was subjected. An application was made to the Supreme Court of the United States for a writ of error on account of these alleged irregularities in the trial. This Court decided that the interpretation put upon this statute by the State Court did not deprive the accused of a trial by an impartial jury, and, therefore, they would not be, by conviction, deprived of their lives without due process of law. And further, that the extent of the cross-examination of a defendant, whether it must be confined to matters pertinent to his testimony in chief or may be extended to matters in issue, was not a Federal question.

[ocr errors]

One of the purposes of the fourteenth Amendment, in its application to criminal trials, is to see that no unjust discrimination is made between citizens. As the Court say in United States v. Cruikshank et al., 92 U. S. 542, this amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the

United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty." Yick Wo v. Hopkins, 118 U. S. 356, brought before the United States Supreme Court, the construction of an ordinance of the city of San Francisco. This provided that a laundry must be of brick or stone, unless the consent of the supervisors to a different construction was obtained; that without the consent of this board, no scaffolding could be erected on the roof of any building; the violation of this ordinance was made a misdemeanor. It was admitted upon the record that only Chinese had been arrested for a violation of this regulation, while others had not been molested; and that the petitions of Chinese for the permission of the supervisors had been uniformly refused, while those of other persons had been granted. The State Supreme Court held that the action of the supervisors under the ordinance was justifiable. The Supreme Court of the United States, however, decided that they had the right to put their own construction upon the ordinance; that the United States Constitution had been violated because the city regulation conferred upon the authorities "arbitrary power, at their own will and without regard to discretion in the legal sense, to give or withhold consent as to persons or places, without regard to the competency of the persons, or the propriety of the place selected." And further, "that the guarantees of protection, in the fourteenth Amendment, extended to all persons within the territorial jurisdiction of the United States, without regard to differences of race, color, or nationality."

In the above case of State v. Ryan, the judge of the State Court by decid

ing that the prisoner had been found guilty without due process of law and in violation of the fourteenth Amendment of the Constitution of the United States, and by ordering his discharge, prevented an extremely interesting question of constitutional law, as it affects the right of personal liberty, from coming before the United States Court for decision. The Wisconsin statute is certainly somewhat obscure. The learned Court seems to be in great doubt as to the nature of the Act, and gravely inform us that "if it be regarded as penal, then its validity would seem to turn upon widely different considerations than if it were paternal; and if it is to be regarded as paternal, then its validity would seem to turn upon widely different considerations than if it were penal." To become gloriously drunk in strict privacy has, heretofore, been regarded as one of the natural rights of the citizen, which is beyond the public control; while intoxication which leads to breach of the peace or infringement of the rights of others may place its victim within the power of the law. And commitment to an inebriate asylum has been held to infringe the right of personal liberty where it has been done upon ex parte affidavits, and without affording a chance to be heard and a proper examination be

fore a judge or officer and a jury; In re Adrian Janes, 30 How. Pr. R. 446. The act in question would seem to refer not to private drunkenness. It provides that a person charged with habitual or common drunkenness shall be tried. An habitual or common drunkard is known to be such to the community. It further provides for a trial before a Judge of a Court of Record, and the mode of trial is defined to be the same as that before a justice of the peace; and, from the statement, in the opinion of the Court of what was upon the record, the trial would seem to have been before a jury. The question, therefore, would seem to be whether the State has the right, under its police power, either to punish or commit for reformation, a person who has been, after full investigation, found to be a common drunkard. It has been decided that a State may, in the fair exercise of its police power, make it an offence for a citizen to manufacture liquor for his own use, if the public by their Legislature say that such conduct is prejudicial to the good morals of the community : Mugler v. Kansas, supra. There are very good reasons for holding that the example of drunkenness may also be very injurious to the public morals. WM. H. BURnett.

Philadelphia.

Court of Appeals of Maryland.

HUNCKEL v. VONEIFF.

A witness is privileged to cast a grossly slanderous reflection upon a party to the controversy, in response to a question asked during the examination of the witness, and which might have been answered without making such reflection. An action for slander or libel will not lie for such answer.

APPEAL by plaintiffs, from a judgment of the Superior Court of Baltimore County, sustaining a demurrer to the narr. in an action of libel.

Mr. William S. Bryan, Jr., with Messrs. Isidor Rayner and George R. Gaither, Jr., for appellants.

Mr. Edwin Higgins, for appellees.

MILLER, J. (June 13, 1888.) This is an action of libel or slander against a witness in an equity cause, whose testimony was written down by the examiner, returned to the Court, and read at the hearing before the Judge. The alleged libellous or slanderous statements are contained in the testimony thus taken. There was a demurrer to each of the two counts in the declaration, which the Court sustained and thereupon gave judgment for the defendants. From that judgment this appeal is taken.

In the able arguments of counsel the whole field of the law on the question of privilege has been explored, and we believe all the decisions, as well as the opinions and dicta of eminent Judges, have been cited and pressed upon our attention. It would be a tedious task to review them in detail, and a hopeless one to attempt to reconcile them. The question is a new one in this State. No precedent for such an action has been found in our reports or judicial records, and we believe this is the first attempt to bring one since a Court of Justice was first established in the Colony of Maryland, a period of more than two centuries. This fact, while it may not be conclusive against the right to maintain the action, certainly leaves us free to follow and adopt those authorities which state the law in accordance with what, in our judgment, the administration of justice and a sound public policy demand.

The case now before us is not that of an advocate but of a witness, and in our opinion it is of the greatest importance to the administration of justice that witnesses should go upon the stand with their minds absolutely free from apprehension that they may subject themselves to an action of slander for what they may say while giving their testimony. Mr. Townshend, in his book on Slander and Libel, well says: "The due administration of justice requires that a witness should speak according to his belief, the truth, the whole truth, and nothing but the truth, without regard to the consequences; and he should be encouraged to do this by the consciousness, that

VOL. XXXVI.-91

except for any wilfully false statement (which is perjury), no matter that his testimony may in fact be untrue, or that loss to another ensues by reason of his testimony, no action for slander can be maintained against him. It is not simply a matter between individuals; it concerns the administration of justice. The witness speaks in the hearing and under the control of the Court; is compelled to speak, with no right to decide what is immaterial; and he should not be subject to the possibility of an action for his words:" Townshend, Slander & L. § 223.

But there is more substantial authority for the absolute character of the privilege. In the standard work of Starkie on Slander, it is laid down as the result of the English decisions, that witnesses, like jurors, appear in court in obedience to the authority of the law, and therefore may be considered, as well as jurors, to be acting in the discharge of a public duty; and though convenience requires that they should be liable to a prosecution for perjury committed in the course of their evidence, or for conspiracy, in case of a combination of two or more to give false evidence, they are not responsible in a civil action for any reflections thrown out in delivering their testimony:" 1 Starkie, Slander, 242.

This statement of the law has been frequently quoted with approval by the English Courts, and in some instances by Courts and text-writers in this country: Terry v. Fellows, 21 La. Ann. 375 (1869).

In support of the absolute character of the privilege, a long list of English decisions, ancient and modern, has been cited. Without referring to the earlier ones, we mention some of those decided in more recent times, which have special reference to the case of parties and witnesses: Revis v. Smith, 86 Eng. C. Law, 126 (1856); Henderson v. Broomhead, 4 Hurlst. & N. 568 (1859); Kennedy v. Hilliard, 10 Irish C. L. 195 (1860); Dawkins v. Rokeby, 4 Fost. & F. 806 (1866); Dawkins v. Rokeby, L. R. 18 Q. B. 255 (1873); s. c. on appeal in the House of Lords, L. R. 7 H. L. Eng. & Irish App. 744 (1875).

In these cases WILLES, COLERIDGE, C. J., COCKBURN, C. J., BLACKBURN, KELLY, C. B., CRESSWELL, Lord CAIRNS, and other eminent jurists, have again and again expressed the opinion. that the privilege of a witness should be absolute, have

pointed out the great benefit of such privilege to the administration of justice, and have deprecated in strong terms the evil consequences they thought would ensue if witnesses were placed under any intimidation, or the fear of being involved in litigation by reason of what they might say when under examination. In Dawkins v. Rokeby, the Judges were called in, and gave unanimously an answer to the question put to them by the House of Lords, in which they say: "A long series of decisions has settled that no action will lie against a witness for what he says or writes in giving evidence before a Court of Justice. This does not proceed on the ground that the occasion rebuts the prima facie presumption that words disparaging to another are maliciously spoken or written. If that were all, evidence of express malice would remove this ground. But the principle, we apprehend, is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action, on an allegation, whether true or false, that they acted from malice. The authorities as regards witnesses in the ordinary Courts of Justice are numerous and uniform.”

After this decision, the case of Seaman v. Netherclift arose, which was tried before C. J. COLERIDGE, at nisi prius, and afterwards decided by him and BRETT, J., in L. R. 1 C. P. Div. 540; and subsequently by the Court of Appeals in L. R. 2 C. P. Div. 53 (1876). The Judges who heard the case on appeal, were COCKBURN, C. J., BRAMWELL, A. J., and Amphlett, A. J., and they disposed of it at once. COCKBURN, C. J., said: "If there is anything as to which the authority is overwhelming, it is that a witness is privileged to the extent of what he says in course of his examination. Neither is that privilege affected by the relevancy or irrelevancy of what he says; for then he would be obliged to judge of what is relevant or irrelevant, and questions might be, and are, constantly asked which are not strictly relevant to the issue. But that, beyond all question, this unqualified privilege extends to a witness, is established by a long series of cases, the last of which is Dawkins v. Rokeby, after which to contend to the contrary is hopeless. It was there expressly decided that the evidence of a witness, with reference to the inquiry" (the inquiry

« PředchozíPokračovat »