Cooper v. Illinois Publishing & Printing Co.

ADDITIONAL OPINION FILED ON PETITION FOR REHEARING.

Mr. Presiding Justice Taylor delivered the opinion of the court.

The appellee has filed a petition for rehearing in which is argued, inter alia, (1) -the rules applicable as to the admissibility of the evidence, (2) whether the evidence admitted and excluded was sufficient to make out the defense of justification, and (3) the ruling of the trial court upon the admissibility of defendant’s exhibit 4, and the testimony of the witness Griswold.

(1) We have expressed our opinion to the effect that an offer of any evidence of what transpired at the trial of any sex case tried before the plaintiff was competent. By that we mean, of course, that any such material evidence at the time it is offered is competent providing it is the stated purpose of counsel offering it that at least the substance of what transpired in the course of the particular sex ease will be ultimately offered and shown to be material. Of course, the ordinary rule will apply that if the substance of what transpired in the sex case is not, in the end, offered, that, which has already been introduced in that particular case should be stricken out, unless, in and of itself, reasonably considered and having in mind the issue, it has some probative force. The defendant not being able to offer all or the substance of what’ transpired in any sex case all at once, is entitled to offer it in the order which to him seems best. Further, whenever the defendant has concluded the introduction of all or the substance of the evidence in any sex case, and the question arises, upon the motion of counsel for the plaintiff, whether or not that evidence has any tendency whatever to prove the truth of the charges declared upon, it, of course, should be allowed to stand or should be ruled out according to whether or not, in the opinion of the trial judge, it has, considering the issue, any reasonable probative force and at the same time tends to support the theory of the defense.

(2) The plaintiff in his petition for rehearing correctly states that we reversed the judgment in this cause “primarily upon the ground that evidence under the defense of justification was excluded.” And, then he contends that in doing so we failed to consider whether all the evidence, both admitted and excluded, was, together, sufficient to make out that defense;- that even admitting the truth of all the evidence offered and that excluded, it was insufficient to support the defense of justification, and, therefore, the exclusion of certain evidence offered by the defendant on that phase of the case did not injuriously affect it nor constitute material error. In their argument, however, counsel have not pointed out or shown in what particular or in what way that evidence was insufficient to make out a défense. They do argue that it would be no defense, under the plea of justification, that part of the charges made in the libelous article was proved to be true; and that, to be of any avail to the defendant, all the charges must be proved .to be true. When that contention is intelligently considered, however, its unsoundness becomes at once manifest. For example, if a libelous article charged a person with having committed a series of ten crimes, nine of which were serious felonies and the tenth, the commission of a mere misdemeanor, and the publisher of the article was sued, and, under a plea of justification, proved the truth of the nine felonies and was unable to prove the truth of the misdemeanor, in such a case we may readily assume that any damages recoverable would be merely nominal. In support of counsels’ contention they cite the case of Ogren v. Rockford Star Prtg. Co., 288 Ill. 405 , in which the court said (p. 412): “The plea of justification must be as broad as the charge and requires certainty of averment. (17 R. C. L. 400.) It should contain no other averments except the matters justified. If one is guilty of publishing the whole of the alleged defamatory matter, he cannot justify by showing that some part of the defamatory matter, though divisible from the rest, was true. (17 R C. L. 4Ó1.) ” When that rule, which, like many similar generalizations, states more than the truth, is not carefully considered it apparently bears out counsels’ contention. It needs, however, the following qualification, that where several separate and distinct matters are charged, the defendant may justify as to one though he fail as to the others. Lampher v. Clark, 149 N. Y. 472 . In a note to Rutherford v. Paddock, 180 Mass. 289 , appearing in 91 Am. St. Eep. 291, many cases upon this subject are discussed and their result well stated, is as follows: “The general declaration met with so frequently in the decisions, that the justification must be as broad as the charge, tends to mislead by producing the impression that, unless the defendant can prove the truth of all the charges made by him, it is useless, or even dangerous, to prove any. We apprehend that all that is meant by this general declaration, wherever made, is that nothing less than proof of the whole charge made by defendant can entitle him to a verdict. * * * Where, however, the plea is sufficient to warrant the reception of evidence of the partial truth of the charge, it is admissible to mitigate damages.” In the Lampher case, supra, the court said: “The rule of pleading that the justification shall be as broad as the charge does not mean that the answer in justification must be broad enough to embrace every slanderous charge stated in the complaint. When several separate and distinct things are charged, the defendant may justify as to one though he fail as to the others.” In the instant case the libelous articles complained of make certain charges of judicial misconduct against the plaintiff in the trial of sex cases, many of which cases were expressly mentioned. Under these circumstances, if, on the trial, the defendant proves any of the charges to be true, it will have justified, pro tanto, that is, as far as those charges are involved.

(3) Defendant’s exhibit 4 was admissible under the pleas of justification. It referred to the Morgan case, which was particularly pleaded in one of the special pleas of justification. It will not be denied that it would tend to justify defendant’s statements here complained of, if it could be shown, that the plaintiff had imposed a fine of $5 upon a defendant found guilty of the crime of assault with intent to commit rape. If the record of the Morgan case in the office of the clerk of the Criminal Court was to that effect, defendant was entitled to establish that fact and the proper way to do so was by means of a certified copy of the record. Illinois Statutes, ch. 51, see. 13 (J. & A. ft 5530). If, as the plaintiff claims, the existence of this record was due to a mistake of the clerk, which was subsequently corrected to show that the order which the court really did enter was one imposing a fine of $5 upon a finding of simple assault, those facts might properly be shown in rebuttal, but they would not affect the admissibility of defendant’s exhibit 4 at the time it was offered. The records of the court must be presumed to- speak the truth. If this record did speak the truth it was competent and material evidence in support of the pleas of justification. As above stated, if the plaintiff could establish, which he claims he could, that it did not speak the truth, that was a right of which he might avail himself upon rebuttal.

A further reason for the admissibility of this evidence is found in the fact that in support of its' case plaintiff introduced its- exhibit 5a, being the headlines to an article in the Examiner of May 31, 1913. We have held that the balance of that article was admissible in evidence and it was error to exclude it. Within the part of the article which was thus excluded is the following: “A man convicted by a jury of a crime against a woman in Judge Cooper’s court will be found by the record to have been fined $5.00.” It was proper to substantiate that statement by showing what the record was—even though the plaintiff might be able subsequently to show it was erroneous —by means of defendant’s exhibit 4. Furthermore, exhibit 4 having been admitted in evidence, it would be proper for the witness Griswold to testify that he examined the record of this case in the Criminal Court previous to the publications complained of and that he found the record as set forth in the exhibit referred to.

Rehearing denied.