CHRISTIAN MERK v. JOHN GELZHAEUSER, 50 Cal. 631

By the Court : 1. The defendant failed to show that he was entitled to a new trial on the ground of newly discovered evidence. The affidavit of Johnson, if otherwise sufficient, was produced under circumstances, as shown by counter-affidavits, which exposed it to the suspicion of bad faith. It was not sufficient to raise a reasonable presumption that the testimony of Johnson, if produced, would change the result. 2. The defendant justified the speaking of the words alleged to be slanderous, on the ground that they were true.

The court instructed the jury that, “in order to make good his defense, the defendant is required to prove the plaintiff guilty of the crimes imputed to him by the slanderous words, by testimony sufficient to convict the plaintiff of those charges on a criminal trial; and if the defendant has failed to do this, the jury must find for the plaintiff.” This correctly states the law. “To support a special plea in justification where crime is imputed, the same evidence must be adduced as would be necessary to convict the plaintiff upon an indictment for the crime imputed to him; and it is conceived that he would be entitled to the benefit of any reasonable doubts of his guilt, in the minds of the jury, in the same manner as in a criminal trial.” (2 Green-leaf Ev., Sec. 426.) This is the rule at common law, and it has not been changed by

section 2061 of the Code of Civil Procedure, which provides, in subdivision 5, “that in civil cases the affirmative of the issue must be proved, and when the evidence is contradictory, the decision must be made according to the preponderance of evidence.” This but affirms the general rule at common law, and does not abrogate the exception stated by Mr. Greenleaf. Judgment and order affirmed.