Evidence: Exclusion of Testimony as to How Libel Made Libeled Person Feel

1917 Michigan law review  
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more » ... ntent at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. RECENT IMPORTANT DECISIONS RECENT IMPORTANT DECISIONS crime, the weight of such evidence to be determined by the jury in the light cf all the surrounding circumstances. Pedigo v. Commonwealth, 103 Ky. 4I, 44 S. W. I43, 42 L. R. A. 432, 82 Am. St. Rep. 566; State v. Adams, 85 Kan. 435, II6 Pac. 608, 35 L. R. A. N. S. 70; Carter v. State, Io6 Miss. 507, 64 So. 215, 50 L. R. A. N. S. III2; Hargrove v. State, I47 Ala. 97, 4I So. 592, IO Ann. Cas. 1126; State v. Norman, 153 N. C. 59I, 68 S. E. 917. For a full collection of cases see notes to 42 L. R. A. 432; 35 L. R. A. N. S. 870; Ann. Cas. I9I2D 39; Ann. Cas. I9I5A II93. The ruling in the principal case seems indicative of a modern tendency to hold this kind of evidence inadmissible,-at least in northern jurisdictions. EVIDENCEt-EXCrUSION o0 TESTIMONY AS TO HOW LIBEL MADE LIBELED PERSON FEEL.-Plaintiff, a minister, sued defendant for a libel contained in defendant's newspaper, calling the plaintiff an "interloper, a meddler, and a spreader of distrust, discontent and sedition." A witness for the plaintiff was asked how this libelous matter seemed to make the plaintiff feel. Held, that the answer was properly 'excluded because it called for the opinion of the witness. Van Lonkhuyzen v. Daily News Co. (Mich. I917), I6I N. W. 979. A search of the authorities discloses that only one jurisdiction, Alabama, follows the instant case. In McAdory v. State, 59 Ala. 92, in a prosecution for arson it was held error for a witness to state that the defendant "looked downcast," because it was merely a statement of the witness's opinion. To the same effect, in Johnson v. State, I7 Ala. 618, the court held it error for a witness to say "the prisoner looked serious, although habitually a lively man." In neither case did the courts give satisfactory reasons, but simply called it opinion evidence. Seemingly all the other authorities, for cogent reasons, take the opposite view. In State v. McKnight, II9 Ia. 79, 93 N. W. 63, the court held it proper for a witness to testify that the deceased when sick "appeared to be despondent" and "did not seem hopeful," without stating the facts upon which he based his opinion, on the theory that it was mixed fact and opinion. In State v. Bradley, 64 Vt. 466, 24 Atl. I053, a witness was permitted to testify that when accused of the crime the defendant "seemed kinder worried," because it is more a statement of a fact than of an opinion. In Fritz v. Hudson Union Tel. Co., 25 Utah 263, 7I Pac. 209, the statement "he looked at me in a disgusted way" just before his accident, was held to be a fact, not an opinion. In State v. Wright, II2 Ia. 436, 84 N. W. 541, it was held error to exclude the statement that the defendant "looked queer." These statements are of exactly the same character as the answer to the question in the instant case. The question would at most, call for a mixed answer of fact and opinion and it seems, according to the authorities, should have been answered. But even admitting that the answer called for an opinion purely, it still should have been admitted. One of the exceptions to the opinion rule tllows a layman even to give an opinion where it is practically impossible for the witness to make the jury see and hear what he saw and heard, by reciting the facts without
doi:10.2307/1276356 fatcat:ebrgphyfjbc5zagpjcs7hkw7ay