Evidence. Evidence is admissible in •a suit for libel to rebut the defense of fair com ment and prove malice; [1906] 2 K. B. 627; also of plaintiffs social and business stand ing; Morning Journal v. Duke, 128 Fed. 657, 63 C. C. A. 459; or of his family relations; Smith v. Hubbell, 142 Mich. 637, 106 N. W. 547; Enoa v. Enos, 135 N. Y. 609, 32 N. E. 123; but the grief felt by the plain t's_ wife or the influence thereof on the plaintiff's mind are not elements of dam nges; Dennison v. Pub. Co., 82 Neb. 675, 118 N. W. 568, . 23 L. R. A. (N. S.) 362. The de fendant may testify to his lack of malice and that his feelings toward plaintiff were friend ly; Dorn v. Cooper, 139 Ia. 742, 117 N. W. 1, 118 N. W. 35, 16 Ann. Cas. 744; particularly on the question of punitive damages; Henn v. Horn, Ohio St. 442, 47 N. E.. 248. Where the language is unambiguous, defend ant may not testify as to what he meant; State v. Heacock, 106 Ia. 191, 76 N. W. 654; nor that he did not intend to charge the corn mission of a Hay Reid, 85 Mich. 296, 48 N. W. 507; contra, Faxon V. Jones, 176 Mass. 206, 57 N. E. 359.
When publication is proved, the defendant may show that the words complained of are true or that they are not malicious. These two defences are known as justification and privilege: Justification in Cr4m4nal In prose cutions the common-law rule was that the person charged may not justify by pleading the truth in evidence; 11 Mod. 99; because, if the publication is malicious, it is equally to the public interest to punish the publisher of it, whether it was true or not.
By Lord Campbell's Act (1843) it is pro vided that in an indictment for libel, the truth. may be inquired into, but shall not amount to a defence unless it is for, the public benefit that the matters charged should be This statute does not or seditious publications.; 2 Cox, C. C. 45; 12 L. R. Ir. 29; and where the statute does not apply, truth is no defence; 10 Cox, C. C. 356; 5 Q. B. D. 1; 4 F. & F. 1089. In this country it has been held that on an indictment for libel the truth is a justification and may be given in evidence; King v. Root, 4 Wend. (N. Y.) 114, 21 Am. Dec. 102; Lanning v. Christy, 30 Ohio St. 115, 27 AM. Rep. 431; and that though ordinarily not a defence, it may be given to negative malice where justifiable purpose is shown ; Com. v. Blanding, 3 Pick. (Mass.) 304, 15 Am. Dec. 214; but the law in Massachusetts was subsequently changed by statute so' that the truth, with good mo tives and for justifiable ends, is a complete' justification. As to statutes in other states, see infra.
In a criminal prosecution, it Is sufficient publication if the libel has been shown to the prosecutor and to no other person, as such a publication tends to a breach of the peace; 1 Stark. 471; 7 Cox, C. C. 25.
Ordinarily. malice is to be implied from mere publication; justification or extenua tion must proceed from the defendant ; but where the communication is privileged, the burden on the plaintiff to prove Wane v. Oyster, 230 U. S. 165, 33 Sup. Ct. 1043, 57 L. Ed. 1439.
Civil Actions. The de fendant may justify by • pleading the truth in evidence; Perry v. Man, 1 R. I. 263 ; Fry v. Bennett, 5 Sandf. (N. Y.) 54; Hall v. Dairy Co., 15 Wash. 542, 46 Pac. 1049; but the truth must be as broad as the defamato ry accusation in order to constitute a com plete defence; Thompson v. Pioneer-Press Co., 37 Minn. 285, 33 N. W. 856. It is not sufficient merely to allege that the charge is true; Atteberry v. Powell, 29 Mo. 429, 77 Am. Dec.' 579 ; 'Sweeney v. Baker, 13 W. Va. 158, 31 Am. Rep. 757; and the plea of justifi cation is that the whole statement is sub stantially true; 3 B. & Ald. 673; gross ex aggeration destroys the plea ; 6 Bing. 266. The existence of a rumor to the same effect as a libel is not admissible as evidence on a plea of justification; 8 Q. B. D. 491.
To prove justification for imputing a crime, the evidence must be sufficient to overcome the legal presumption of innocence, but this need not go to the extent of con vincing the jury beyond a reasonable doubt of the truth ; Abraham v. Baldwin, 52 Fla. 151, 42 South. 591, 10 L. R. A. (N. S.) 1051, 10 Ann. Cas. 1148. 'A criticism which ridi cules an author's private life cannot be jus tified on the ground that it was a mere jest ; Triggs v. Pub. Ass'n, 179 N. Y. 144, 71 N. E. 739, 66 L. R. A. 612, 103 Am. St. Rep. 841, 1 Ann. Cas.' 326.
It has been held that if the defendant fails to plead a complete justification, he will not be allowed to prove his defence; Orvis v. Dana, 1 Abb. N. C. (N. Y.) 268; although the rule is generally established that a de fendant may justify part of a libel contain ing several distinct charges ; 2 Bing. N. C. 664.
Either party is entitled to a bill of particu lars of any charge not set forth with suffi dent detail in the pleadings to enable the party to meet it; Tilton v. Beecher, 59 N. Y. 176, 17 Am. Rep. 337; Com. v. Snelling, 15 Pick. (Mass.) 321; McDonald v.. People, 126 150, 18 N. E. 817, 9 Am. St. Rep. 547 ; Williams v. Com., 91 Pa. 493; but see Orvis v. Dana, 1 Abb. N. C. (N. Y.) 268, where it was held that the proper practice to obtain particulars of a justification is by motion to make the answer more definite.