Opinion
(June Term, 1848.)
In cases brought to the Supreme Court, when the error assigned is in admitting or rejecting evidence, the exception must set out the evidence itself, which was improperly admitted, or offered and improperly rejected.
APPEAL from the Superior Court of Law of JOHNSTON, at Spring Term, 1848, Caldwell, J., presiding.
Miller, J. H. Bryan and W. H. Haywood for plaintiff.
B. F. Moore, Busbee and G. W. Haywood for defendant.
This is an action of slander, in which the words laid in the declaration are, "he has forged my name to a note." Plea, not guilty.
The case states that on the trial a witness for the (319) plaintiff gave evidence that in a conversation between the witness and the defendant, respecting the plaintiff, the defendant said either "he has forged my name to a note," or, "he has forged my name on a note, and has gone to the South, and I believe will not come back"; but whether it was the one expression or the other, the witness was unable to say.
The case further states that the defense was that the defendant had been innocently led to believe that the plaintiff had written the defendant's name as an endorser of a note by one William Moody, and that he spoke the words while under a mistake in that respect. And in order to sustain that defense a witness was called, who produced the note alluded to, and it appeared to have been made by Moody to a person who endorsed it to the plaintiff, and it had on the back of it in writing the words, "Wm. Moody, David Lunsford's overseer." And the witness testified that the words, "David Lunsford's overseer," were in the handwriting of the plaintiff; and that, "soon after the endorsement to him, the plaintiff, then about going North, placed the note in the hands of the witness, a constable, for collection. And the witness further deposed that, seeing the name of the defendant on the note, and not being able to read the word "overseer," he took out a warrant against Moody as maker and Lunsford as endorser, and went to Lunsford's and served it on both of them; and that he then showed the note to the defendant, who could read writing, but was at the time very sick and in bed. The counsel for the defendant then proposed "to prove by the witness the conversation that took place between the witness and the defendant at that time," which was opposed on the part of the plaintiff, and rejected by the court.
The jury returned a verdict for the plaintiff, with $500 damages; and the defendant moved for a venire de novo upon the (320) ground that the court rejected proper evidence; and, after a refusal and judgment, he appealed.
The Court is under the necessity, though reluctantly, of affirming the judgment.
It is easy to conceive that the constable may have given to the defendant, who was then sick abed and might not have read the paper or been in a condition to judge for himself, such information as to the tenor of the endorsement and the handwriting as would leave no doubt on the mind of the defendant that the words were written by the plaintiff, and purported to be an assignment of the note by the defendant to the plaintiff. That probability is rendered quite strong by the circumstances that the witness deposed that he thought so at the time, and took out the warrant accordingly. If, then, the defendant, under those circumstances, honestly believed so from the declarations of the plaintiff's agent, and, soon afterwards, before he was better informed or had the opportunity of inquiring into the truth from the plaintiff — then out of the State — he spoke the slanderous words, he would certainly be less culpable than if he had framed the tale of his own invention, or even had received his impression from a source apparently not entitled to so much confidence. But, admitting all this, yet the judgment must stand, as the Court cannot proceed on probabilities of this sort, and assume, because the testimony of the witness might, that, therefore, it would have been of that character. On the contrary, the presumption of law is favorable to the judgment, that it is right, until the contrary appear; and it is incumbent on the appellant to show affirmatively that there is error. To do that it is not sufficient to state in the exception that the (321) defendant offered to prove "the conversation that took place between the witness and the defendant at that time"; but it is obviously indispensable to set out what the conversation was which it is alleged the court erred in rejecting. Without putting down the conversation it cannot be seen that it was competent or relevant, or that a prejudice could have arisen to the defendant by excluding it. In other words, when the error assigned is in admitting or rejecting evidence, the exception must set out the evidence itself which was improperly admitted, or offered and improperly rejected.
Another error was urged in the argument, namely, that the plaintiff's evidence did not support the declaration, because the latter alleges substantially a charge of forging a note purporting to be made by the defendant, while the evidence leaves it uncertain whether the charge was not one of forging an endorsement of a note by the defendant, which is a different forgery. But, for similar reasons, the Court cannot sustain this objection. It was not raised on the trial. The exception is exclusively to ruling out the evidence. The Court cannot know but that much other evidence was given as to the speaking of the words, and must presume there was, if necessary to support the verdict. It has been frequently decided that it is not necessary to support the verdict by showing a sufficient case made on the trial to justify it; and that the judgment must stand, in respect of matters dehors the record, unless by exception it appear that the court erred in point of law in receiving or rejecting evidence, or giving or refusing some direction to the jury.
PER CURIAM. Judgment affirmed.
Cited: Otey v. Hoyt, 48 N.C. 411; Straus v. Beardsley, 79 N.C. 63; Gadsby v. Dyer, 91 N.C. 316; S. v. Pierce, ib., 609.
(322)