McBee v. Fulton

47 Md. 403, 1878 Md. LEXIS 4

• Court: Court of Appeals of Maryland
• Decided: January 25, 1878
• Status: Published

Opinion

Miller, J.,

delivered the opinion of the Court.

The appellant sued the appellees, the editors and proprietors of a daily newspaper, called “The Baltimore American and Commercial Advertiser,” published in Baltimore City,,for the following alleged libel upon him, which appeared in that paper on the 25th of September, 1875, under the heading, “a ruffian caged.”

“For several weeks past the police of the North-western District have been endeavoring to make the arrest of a man named Wm. McBee, who has occasioned considerable trouble in various neighborhoods. It appears he is a low character who habitually frequents the streets and always seeks to throw himself in the way of school girls, often insulting them with indecent remarks and actions. In some instances he would wait around the schools until the dismissal of the pupils, and then would exhibit the greatest importunity in pressing his company upon them. This man and his reputation became so extensively known in many of the female schools that he was feared by the scholars, and numerous precautions adopted to protect the girls from his insults. For several days past he had been visiting the locality of a well known and fashionable school, and created the greatest annoyance to the young ladies by his persistent familiarities and vulgar insults. The police were notified and yesterday succeeded in arresting him. He was given a hearing in the afternoon, when a number of young ladies who had been approached testified as to the facts as above narrated. Justice McCaffray committed him for the action of the grand jury.”

The defendants pleaded 1st, not guilty, and 2nd, that said alleged defamatory writing set out in the declaration is true, and the case was tried upon issues joined on these pleas. In the course of the trial, several exceptions were taken to the rulings of the Court, and these present for our determination one or two questions of interest and importance.

1st. The plaintiff offered in evidence the libellous publication declared on, and two substantial repetitions of the same, after suit brought, one published on the 8th of January, 1876, and the other on the 29th of March, 1877, in the same newspaper. He then further offered evidence tending to show that he was a laboring man, a mechanic, having a large family to support by his labor ; the wealth and position of the defendants; the extent of the circulation of the newspaper in which the libellous publications appeared, and that the defendants were the editors, publishers and proprietors thereof, and there rested his case.

The defendants then, to sustain the issue on their part, offered evidence tending to prove that the plaintiff was arrested and taken before Justice McCaffray upon a charge of indecent exposure of his person, that an investigation and hearing was had upon that charge before the justice and witnesses examined thereat, but none were produced or examined on the part of the plaintiff, and that at the termination of this examination the justice committed the plaintiff for the action of the grand jury. They further offered evidence tending to prove that the justice, at the termination of this examination, narrated the facts as they had been given in evidence before him, to the reporter of the newspaper, and that the narrative of facts elicited'upon such examination as set out in the supposed libel, so far as the same appears to be a narrative thereof, is a substantially true summary of the facts as detailed to him by the committing magistrate, and that this narrative was prepared and published in the paper by the reporter as agent for the defendants, from the information thus furnished to him by the justice as and for a correct narrative thereof. They also further offered evidence ténding to prove that they had no acquaintance with or any knowledge of the existence of the plaintiff prior to this publication.

The most important question in the case is, was the Court right in allowing this offered testimony to go to the jury, and in instructing them that if they find from the evidence that the several matters of fact narrated in the alleged libel were published by the defendants, and that the same are a correct account of the charges preferred against the plaintiff in the course of an official inquiry before a justice of the peace, and shall further find that the commentaries upon these matters of fact contained in this publication are a fair commentary upon the same, assuming them to be true, then the alleged libel was a privileged communication, and the plaintiff is not entitled to recover unless they shall further find the defendants were actuated by express malice towards the plaintiff.

Without going at large into the general question as to what communications the law protects from a civil action or criminal prosecution for libel, it is sufficient for the purposes of this case to say, that the adjudications both in .England and in this country, have now clearly settled that there are: 1st. Some communications which on grounds of public policy are absolutely privileged. What these are need not be specified. 2nd. Communications to which, on grounds of public benefit a qualified privilege is given, or those which are privileged by the occasion, if fair, bona fide and impartial, though defamatory of individuals and published to the world at large. Under this head are included newspaper and other reports of the proceedings of Courts of ¡justice: and on the same grounds of public benefit and advantage, and within the same limits, the privilege extends to newspaper and other reports of debates and proceedings in Parliament or Legislative bodies in this country. Folkard’s Starkie on Slander and Libel, (Amer. Ed.,) sec. 688.

The precise question presented by the rulings now under consideration is, whether the publication of a report of proceedings before a justice of the peace of this State, in in the course of a preliminary inquiry upon a charge of an indictable offence, resulting in holding the party to bail or committing him for the action of the grand jury, is entitled to the qualified privilege which attaches to the reports of the proceedings of Courts of justice ? At one time the preponderance of judicial opinion, at least, in England may be conceded to have been against according this privilege to reports of such proceedings before the magistrates of that country. The case most strongly supporting that view is that of Duncan vs. Thwaites, 3 Barn. & Cress., 556, decided in 1824. In that case the judgment of the Court was delivered by Chief J. Abbott, and all the then decisions and opinions of Judges having any bearing on the question, were referred to in argument on the one side or the other. The case cited which approached nearest to sustaining the privilege was Currie vs. Walter, 1 Esp., 456, which his Lordship admitted was a case of great authority in itself and derived an additional weight from the manner in which it was mentioned by Mr. Justice Lawrence, in Rex vs. Wright, 8 Term, Rep., 293, but he said it had not received the sanction of subsequent Judges, and it differed in some important facts from the case he was considering. Among the differences which he pointed out was that in Currie vs. Walter there was an account of a proceeding in the Court of King’s Bench, a Court instituted for final determination as well as preliminary inquiry, whose doors are, as they ought to be, open to so many of the public as can be conveniently accommodated within its walls, whereas the proceeding in the case before him was before justices of the peace, and was of a kind which they may lawfully conduct in private whenever they think fit to do so. Afterward in 1848, two Acts of Parliament were passed, consolidating and amending the several statutes relating to the duties of justices of the peace. The first (11 & 12 Vic., ch. 42,) prescribes their duties with respect to persons charged with indictable offences, and confers power to issue warrants of arrest, to make preliminary examinations, to hold to bail, or commit for trial, similar in most particulars to the powers possessed and exercised by justices of the peace in this State. But by one of its sections it is declared that “ the room or building ” in which the justices shall make such preliminary investigations, “shall not be deemed an open Court for that purpose,” but whenever they consider it proper, they may conduct the examination in private. The second (11 & 12 Vic., ch. 43,) relates to their duties in cases of summary convictions and orders, and this statute confers powers not possessed by our justices. It also declares that “the room or place” in which they shall sit to try such cases, ‘ ‘ shall be deemed an open and public Court, to which the public generally may have access, so far as the same can conveniently contain them,” and that the party accused shall be allowed to make his full answer and defence, and have witnesses examined and cross-examined by counsel: and it further appears that final judgments given under this statute are subject to appeal. Afterwards, in 1858, the case of Lewis vs. Levy, (96 Eng. C. L. Rep., 535,) was decided in the King’s Bench, in which the privilege was sustained. It was an action for three separate libels, published in a newspaper on three several days, each professing to give a report of what had taken place on different days before a magistrate, upon a charge of perjury preferred against the plaintiff. The magistrate acted under the first statute above cited, and after several adjournments and examining all the witnesses brought before him, dismissed the summons. The judgment was delivered by Lord Campbell, C. J., and it is important we should notice some of the views of the Court expressed in that opinion. After stating the general proposition that it is a good defence to an action for libel, that it consists of a fair and impartial (though not verbatim) report of a trial in a Court of justice, they refer to the contention of the plaintiff’s counsel, that this privilege must be confined to the proceedings of the superior Courts of law and equity, and entirely repudiate it, saying that “ on such a question the dignity of the Court cannot be regarded : we must look only to the nature of the alleged judicial proceeding which is reported, and for this purpose no distinction can be made between a Court of pie poudre and the House of Lords sitting as a Court of justice.” They then refer to the contention that in no case have the reports of proceedings before magistrates any privilege, and to this general proposition refuse assent, and affirm that proceedings under Statute 11 & 12 Vic., ch. 43, in cases of summary convictions and orders, are strictly of a judicial nature, for the reason among others, that the place in which such proceedings are held is an open Court. Coming then to the proceedings before them (which as we have seen were under Statute 11 & 12 Vic., ch. 42,) and to the case of Duncan vs. Thwaites, which was relied on as having determined the general doctrine that a report of such proceedings cannot be justified, they say that in that case the libel contained the highly colored statement of the reporter, evidently insinuating the guilt of the accused, and that much stress was laid by Lord Tenterden in delivering the judgment of the Court, upon the fact that the proceedings terminated in the first instance by holding the accused to bail for trial, whereas in this case, the examination terminated in the dismissal of the summons. The opinion then proceeds: “We are not prepared to lay down for law that the publication of preliminary inquiries before magistrates is universally lawful, but we are not prepared to lay down for law, that the publication of such inquiries is universally unlawful; although there are numerous dicta there is no decision to that effect.” His Lordship then cites with marked approval the case of Currie vs. Walter, where the alleged libel consisted of a report in the Times of an application in the Court of King’s Bench for a rule to show cause why a criminal information should not be filed against magistrates for a conspiracy corruptly to refuse a license to a public house. The rule was refused on technical grounds and the report truly set out the contents of the affidavits making the charge. The case was tried before O. J. Eyre, who told the jury that though the matter contained in the paper might be very injurious to the character of the magistrates, yet that being a true account of what took place in a Court of justice, which is open to all the world, the publication •of it was not unlawful, and on a rule nisi for a new trial, all the Judges of the Common Pleas were clearly of opinion the action could not be maintained. The opinion then affirms that that case “has been often criticized but never overturned, and often acted upon; ” that it received the unqualified approbation in Rex vs. Wright, of that great Judge, Mr. Justice Lawrence, who observed that, though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of Courts of justice should be universally known, and that the general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to private persons, whose conduct may be the subject of such proceedings ; and that the decision of Chief 'Justice Eyre rests f‘on sound legal principles, and is now almost universally approved of.” Then after showing that the only difference to be relied on between that case and the one before them was in the tribunals, we have this positive and emphatic expression of opinion on that subject: But although a magistrate upon any preliminary inquiry respecting an indictable offence may, if he thinks fit, carry on the inquiry in private, and the publication of any such proceedings before him would undoubtedly be unlawful, we conceive that while he continues to sit foribus apertis, admitting into the room where he sits as many of the public as can be conveniently accommodated, and thinking that this course is best calculated for the investigation of truth and the satisfactory administration of justice, (as in most cases it certainly will be,) we think the Court in which he sits is to be considered a public Court of justice.” And finally, while declining to give an opinion in favor of the general legality of publishing reports of such proceedings, where the accused has been committed or held to bail for an indictable offence, the Court yet say “ but we cannot join in the sweeping condemnation of police reports, pronounced obiter before the benefit arising from those reports had been fully experienced ; we believe that they often lead to the detection and punishment of crime, and that they sometimes assist in the vindication of character,” and against the severe denunciation of such reports by several eminent Judges, they place the opinion of Lord Denman, C. J., delivered before a committee of the House of Lords, in 1843 on the law of libel, in which his Lordship said <fI have no doubt that police reports are extremely useful for the detection of guilt by making facts notorious, and for bringing those facts more correctly to the knowledge of all parties interested in unravelling the truth. The public, I think, are perfectly aware that those proceedings are ex parte, and they become more and more aware of it in proportion to their growing intelligence ; they know that such proceed-' ings are only in course of trial and they do not form their opinion until the trial is had. Perfect publicity of judicial proceedings is of the highest importance in other points of view, but in its effects upon, character I think it desirable.”

Erom the views thus expressed by Lord Campbell, it is plain the.reports of such proceedings were then regarded by English Judges much more favorably than they were in 1824 when Duncan vs. Thwaites was decided. But in 1868, ten years after Lewis vs. Levy, the case of Wason vs. Walter, (4 Law Rep. Q. B., 73,1 was decided in the same Court. The admirable judgment delivered by C. J. Cockburn, in that case has received the approval of this Court in Snyder vs. Fulton, 34 Md., 128, as well for the soundness of the legal propositions therein stated, as for the clear and forcible manner in which they are expressed. There the alleged libels consisted of a report in the Times of a debate in the House of Lords, in which the plaintiff was charged with falsehood and malignity, and of an editorial article in the same paper containing comments unfavorable to the plaintiff founded on this debate. Eor the first time the question was directly presented for adjudication, whether reports of debates in parliament were entitled to the qualified privilege to which we have adverted, and the Court held that the analogy between such reports, and those of proceedings of Courts of justice, is in every respect complete, and that the privilege with its limitations which attaches to the one necessarily attaches to the other. And this exception to the general law of libel in both cases is rested upon the broad principle that the advantage to the community from publicity being given to such proceedings, is so great that the occasional inconvenience to individuals arising from it must yield to the general good. “If,” say the Court, “the principles which are the foundation of the privilege in the one case are applicable to the other, we must not hesitate to apply them. Whatever disadvantages attach to a system of unwritten law, and of these we are fully sensible, it has at least this advantage, that its elasticity enables those who administer it to adopt it to the varying conditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied. Our law of libel has in many respects onty gradually developed itself into anything like a satisfactory and settled form. The recognition of the right to publish the proceedings of Courts of justice has been of modern growth. Till a comparatively recent time the sanction of the Judges was thought necessary even for the publication of the decisions of the Courts upon points of law. Even in quite recent days Judges in holding publication of the proceedings of Courts of justice lawful, have thought it necessary to distinguish what are called ex parte proceedings as a probable exception from the operation of the rule. Yet ex parte proceedings before magistrates, and even before this Court, as for instance our applications for criminal information, are published every day, but such a thing as an action or indictment founded on a report of such an ex parte proceeding is unheard of, and if any such action or indictment should be brought it would probably be held that the true criterion of the privilege is not whether the report was or was not ex parte, but whether it was a fair and honest report of what had taken place, published simply with a view to the information of the public and innocent-of all intention to do injury to the reputation of the party affected.” Then as to the article containing the comments, the Court affirmed the ruling at the trial, in which the jury were told “that they must be satisfied that the article was an honest and fair comment on the facts, in other words that they must be satisfied that the comments had been made with an honest belief in their justice, but that this was not enough, inasmuch as such belief might originate in the blindness of party zeal or in personal or political aversion; that a person taking upon himself publicly to criticise and to condemn the conduct or motives of another, must bring to the task not only an honest sense of justice, but also a reasonable degree of judgment and moderation, so that the result may be what a jury shall deem, under the circumstances of the case, a fair and legitimate criticism on the conduct and motives of the party who is the object of censure.” We refer also to the very recent case of Usill vs. Hales, 26 Weekly Reporter, 371.

Such are the opinions now held by the English Courts on this subject. The only American cases cited by the appellant’s counsel or which we have been able to discover in which this question was directly presented, are Stanly vs. Webb, 4 Sandf., 21, and Gazette Co. vs. Timberlake, 10 Ohio State Rep., 548. In each of these it was decided that the privilege did not extend to the publication of such proceedings before magistrates, but for this position each of them relies upon the case of Duncan vs. Thwaites, and prior expressions of opinion by English Judges. The case in Sanford was decided in 1850, and in 1854 the Legislature of New York passed an Act (which seems to be merely declaratory of the common law,) to the effect that no action will lie for the publication of a fair and true report of a judicial proceeding, except on proof of malice in the making it, which is not to be implied from the fact of the publication, and it was held in 1874 by the Superior Court in that State, that a fair and true report of an ex parte affidavit presented to a police magistrate, to obtain a search-warrant, was privileged as a judicial proceeding, and no action could be founded thereon, even by a party who though named in the affidavit was not the party arrested under the warrant. Ackerman vs. Jones, 37 N. Y. Sup. Ct. Rep., 42.

In this State we are neither restrained nor aided by any adjudication of this Court upon the subject. The views of the English Judges in the recent cases referred to appear to us to be well founded and we see no good reason why we should not adopt them. By our Constitution justices of the peace are made part of the judiciary in whom the judicial power of the State is vested. The most useful and important part of their duties is to investigate charges for indictable offences, and when so acting they are unquestionably judicial officers discharging judicial functions. Here no authority (as in England) has been conferred upon them by statute to conduct their examinations in private. When a party accused of crime is brought before a justice of the peace the investigation which follows is public, or in presence of as many of the public as may choose to attend or can be accommodated in the room or place where the proceeding is conducted. The accused may then disclose his defence or remain silent and reserve it for the time of trial. If he adopts the former course, he has the right, if he chooses, to have counsel to examine and cross-examine the witnesses against him, and upon his reasonable request the magistrate has power to summon and compel the attendance of any witnesses who can give material evidence in his behalf. The investigation may be continued from time to time, and if upon examination of the whole matter and all the witnesses it appears the charge against the accused is wholly groundless, the magistrate may discharge him without even requiring bail, but if there appears to be probable ground to suppose him guilty, then the magistrate holds him to bail, if the offence be by him bailable, or if not so bailable or in default of bail commits the party to jail to await the action of the grand jury. When thus publicly acting in the discharge of judicial duties we see no reason why these proceedings thus publicly conducted before magistrates, whether the accused permits them to be ex parte or makes his defence, or whether they result in his discharge or committal, should not be deemed the proceedings of a public Court of justice, and reports of them entitled to this qualified privilege under the law of libel. Such reports are now and have long been daily made in almost all the public journals of the country, and we are of opinion they are thus privileged for the reasons and upon the grounds stated by Lord Campbell and Chief Justice Cockburn in the cases we have cited. This privilege, which may be set up under the plea of not guilty, is, as we have seen, not absolute but qualified. The qualifications or limitations attached- to it have already been indicated. The reports, though they need not be verbatim, must be substantially correct and not garbled or partial, and made bona fide or without malice, and whether they are of this character is in all cases where this defence is set up and under consideration a question of fact for the jury. And the same thing is- true of the comments accompanying.such reports ; they must be correct and fair and it is for the jury to say whether they are so or not. When we have these essential limitations to be enforced by juries, we see no reasonable ground to apprehend that the privilege while it may subserve the public interest, will leave private character to the mercy of the libeller. In the present case these limitations were correctly applied and left to the finding of the jury by the instruction we have been considering. That part of this instruction which mentions “express malice” needs but few words to sbow its correctness. All the authorities concur in the proposition that the publication of defamatory matter raises the presumption of legal malice and ordinarily no other proof of malice is required than proof of the publication itself, but where the occasion of the publication is lawful and a privilege therefore exists, this presumption is repelled and the jury must find actual or express malice, as distinguished from implied or legal malice. The Court was also clearly right in telling the jury as they did in another instruction, that the subsequent publications of the alleged libel were to be considered by them only as tending to prove that the original publication declared on as the foundation of the action proceeded from express malice or ill-will to the plaintiff. Such subsequent publications, if admissible at all, were admissible for this purpose only. Folkard’s Starkie on Libel and Slander, secs. 586, 587.

2nd. The next question arises upon the plea of justification and the instructions granted thereon. In civil suits (whatever may have been the case in criminal prosecutions) for libel, it has always been held that the truth of the defamatory matter may be pleaded in justification, and if established by proof is a complete bar to the action. The defendants’ first prayer, which the Court granted, is addressed to this view of the case. By it the jury were instructed that if they found that the several charges contained in the publication declared on were true, then the commentaries accompanying those charges were but a fair and reasonable condemnation of the acts so charged, and the defendants were justified as well in the narrative of the charges as in the comments thereon, and the plaintiff cannot recover. In this instruction it° is assumed that the fairness and reasonableness of the comments is a question of law for the Court and not of fact for the jury, and the only objection that can be made to it must rest on this ground. But it is to be observed that this question arises in a very different aspect of the case from that where a similar question is presented by the defence of privilege under the plea of not guilty. By this plea of justification the defendant assumes the serious burden of proving the truth of the defamatory matter. Now, if an alleged libell charges a party with murder, and under such a plea it is! proved that he actually committed that crime, it is clearly no libel to call him a murderer. In such case the fairness and reasonableness of the comments, may well be treated as a question of law for the Court. Although we have found no case in which this point has been expressly adjudged, we'have yet no hesitation in so deciding. And upon the assumption that the plaintiff was actually proved guilty of the acts which the alleged libel in this case charges against him, we find nothing by way of comment either in the term “ruffian,” in the heading of the article, or in any other part of it, which is not a fair and reasonable condemnation of such acts and the party who committed them. By another instruction the Court told the jury that in determining the plea of justification they would consider all the evidence in the case, and weigh the same, and if they found the preponderance thereof in favor of the truth of the alleged libel this is sufficient to establish the plea, and that it is not necessary they should be convinced of that truth beyond a reasonable doubt, and rejected a prayer of the plaintiff to the effect that the evidence must show that the plaintiff is guilty of the charges “beyond all reasonable doubt: in other words, that the evidence must be sufficient to convict the plaintiff on a criminal charge” of the imputed offence. On this point there is much conflict of authority, and the cases on both sides are collected in the note to Folkard’s Starkie on Libel and Slander, page 693. In the absence of any authority in this State to the contrary, we think the true rule on this subject is stated in the recent and well considered case of Ellis vs. Buzzell, 60 Maine, 209, where all the decisions and the principles on which they are rested are considered and reviewed. We agree with the Court in that case that if the slanderous words or alleged libel impute to the plaintiff the commission of a crime, and the plea of justification is interposed “the defendant must fasten upon the plaintiff all the elements of the crime both in act and intent, and to do this he must furnish evidence enough to overcome in the minds of the jury, the natural presumption of innocence as well as the opposing’ testimony : but to go further and say that this shall be done by such a degree and quantity of proof as shall suffice to remove from their minds every reasonable doubt that might be suggested, is to import into the trial of civil causes between party and party, a rule which is appropriate only in the trial of an issue between the State and a person charged with crime, and exposed to penal consequences if the verdict is against him.” There the instruction which was held to gratify this rule was that if the defendant had made out the truth of the charge by a preponderance of testimony, it was sufficient to entitle him to a verdict. Our examination of the authorities has also convinced us of the truth of the observations made by the Court in that case, that “with a very few unimportant exceptions, the cases in which it has been held that to sustain a plea of justification the defendant must adduce such proof as would suffice for the conviction of the plaintiff upon an indictment have been cases in which the words used imputed perjury, and in most of them the matter more directly under consideration has been the propriety of regarding the plaintiff’s testimony upon the occasion referred to as evidence in the cause to be overcome by the production of more than one witness to prove its falsity— the necessity of showing that his testimony was false in .intent as well as in fact — its materiality or some point affecting the truth of the charge, and not the necessity of proving the commission of the crime beyond a reasonable doubt.” And with them we agree that “we have no occasion to question these decisions so far as they enforce the necessity of proving all the elements necessary to constitute the crime, by an amount of evidence sufficient to overbalance the plaintiff’s side of the case.”

3rd. As to the rulings in the second and third exceptions.

In the second exception, after the defendants had offered proof tending to sustain the plea of justification, the plaintiff by way of rebuttal, offered in evidence the record of his acquittal by the Criminal Court of Baltimore City, of the charge of indecent exposure of his person on the occasion referred to, and this the Court rejected. In this ruling there was no error. Such acquittal could not be replied to the plea of justification by way of estoppel, (Folkard’s Starkie on Libel and Slander, sec 505,) nor does the acquittal of the plaintiff on an indictment charging him with the same offence as is specified in the plea of justification, preclude the defendants from proving the truth of the charge, nor indeed does it seem to be evidence at all; for where the words imputed a charge of murder for which the plaintiff had been tried and acquitted, it was held the defendant might justify specially, and that the truth of such plea might be tried. Ibid, sec. 693, England vs. Bourke, 3 Esp., 80. Reference is also made on this point to the recent case of Layman vs. Latimer, 26 Weekly Rep., 305. Reliance was placed in argument upon the fact that in an action for false arrest and malicious prosecution the record of the plaintiff’s acquittal is admissible, but in such an action it must he shown by the plaintiff as an essential requisite to the maintenance of his suit that the criminal prosecution against him had terminated in his favor, and hence in that species of action the record of acquittal is admissible to prove that part of the plaintiff’s case. But no such thing is required in an action for libel, and his acquittal in a prosecution by the State for the offence charged in the libel, is neither evidence for him in chief nor in rebuttal under the plea of justification, for under that plea the question of his guilt must be tried de novo.

After the defendants had offered evidence under this plea by several witnesses, tending to show that the plaintiff had made an indecent exposure of his person to them at a certain time and place, and on two other occasions, the plaintiff offered the testimony of several witnesses tending to show that at the time mentioned he was absent some two or three miles from the locality, and then offered the testimony of a number of witnesses that he was a man of good moral character. The Court restricted this offer of character to showing what his character was for delicacy, modesty and chastity, and to this restriction he excepted. This constitutes the third exception, and as we understand it, it presents the question whether the plaintiff can offer evidence of general good character in rebuttal of the defendant’s proof under the plea of justification tending to show that he was guilty of the imputed offence. It is not a question whether the defendant can under the general issue, and in mitigation of damages, show particular bad traits of character in the plaintiff. If evidence of bad character is admissible at all for the defendant under that issue, it is for the purpose of showing that a bad character is less damaged by a libel or slander than a good one, and in such case there is good reason for requiring the defendant, if he attempts to assail the plaintiff’s character at all, to show that it is generally bad. But where the proof is confined to the plea of justification, under which the defendant assumes the burden of proving the plaintiff guilty of the imputed offence, and the latter seeks to repel the defendant’s proof on that subject and show his innocence by evidence of good character, his evidence on that point and for that purpose must, in our judgment, be confined to those traits of character which the imputed offence involves. The question presented is the same as if he were on trial for the offence and sought to adduce evidence of' character in his defence. In such case the character to be proved must not be general, but such as would make it unlikely that the accused would be guilty of the particular crime with which he is charged. 1 Whart. Cr. Law, (7th Ed.,) sec. 636. Upon the general subject of evidence of character in actions like the present there is much apparent conflict of opinion and authority. We do not propose to review the decisions nor attempt to reconcile them. As the question is presented on this record and in this case, we are satisfied the Court below committed no error in this ruling. The record does not show that the plaintiff himself was examined as a witness, and hence the question whether his good character for truth and veracity could be given in evidence under the decision in Davis vs. The State, 38 Md., 50, does not arise.

From what we have said it follows that the rulings upon the admissibility of evidence in the first, second, and third exceptions, the granting of the defendants’ first and" second prayers, the Court’s modification of the plaintiff’s first prayer, the rejection of his second, fourth and fifth prayers, and the Court’s instruction in lieu of the defendants’ ninth prayer were correct. The Court’s instruction in lieu of the plaintiff’s second prayer being, as we have shown, right in other respects, if there was any error in that part of it which declares that the interposition of the plea of justification might be taken by the jury as evidence tending to prove express malice in the original publication, it was an error in favor of the plaintiff and not against him. The jury having found a verdict for the defendants, it is plain they must have so found either upon the plea of justification or the defence of privilege, and it therefore becomes unnecessary for us to consider whether or not the Court gave them correct instructions upon the question of damages. For the same reason it is also unnecessary to determine whether the Court’s instruction in lieu of the defendants’ third prayer was right. This disposes of all the rulings in the case and finding no ground of reversal, we must affirm the judgment.

(Decided January 25th, 1878.)

Judgment affirmed.