The opinion of the court was delivered by: Moss, Justice.
Part of the charge of J. Henry Johnson, Judge, is as follows:
Now, with reference to the third defense set up in the answer of the defendant, that is the defense commonly referred to by lawyers and judges as the defense of qualified or conditional privilege, I charge you that a publication is conditionally or qualifiedly privileged where circumstances exist or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to certain other persons to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interest of society, that he should tell third persons certain facts which he, in good faith and without malice, proceeds to do. A qualifiedly privileged communication is a fair comment by a public journal upon a matter of public interest. The qualified privilege doctrine of the law of libel permits newspapers and the public generally to engage in free discussion of the manner in which public officials discharge their duties and to make fair criticism of and comments on their official acts, but the privilege does not extend to the publication of false statement of facts concerning public officials nor does it permit a newspaper to make a false charge of a crime merely because the defendant is in the business of publishing a newspaper; but, in that connection, I charge you that whenever one offers himself as a candidate for public office, he becomes a legitimate object of legitimate criticism of his policies, acts and of his fitness and qualifications for the office he seeks. Such right, however, is not authority for false and malicious statements, libelous or slanderous in their nature.
I charge you also that a qualified or conditional privileged occasion, if established by the defendant, affords a prima facie presumption to rebut the inference of malice which the law implies in the publication of slanderous statements, but where actual malice is shown by the evidence, or where the communication goes beyond the occasion and exceeds the privilege, the protection of the privilege is gone. Qualified privilege does not protect a newspaper in any unnecessary defamation. In other words, as I told you a little while ago, gentlemen, that where a statement is libelous per se, libelous as a matter of law, libelous in as of itself, because it charges one with a commission of a crime, or imputes dishonesty to him, that the law presumes that statement was false and that the statement was malicious, but if the defendant comes in and shows that the publication was what I referred to as a qualified or conditionally privileged communication or occasion, then that rebuts, or rather affords, I should say, a prima facie presumption to rebut the inference of malice which the law implies, but where actual malice is shown by the evidence, if any, and where the communication goes beyond the occasion and exceeds the privilege, the protection of the privilege is gone. In that connection, I charge you also, that qualified privilege does not protect a newspaper in any unnecessary defamation.
I charge you also, gentlemen, with reference to that qualified privilege or conditional privilege, that it's an affirmative or special defense and must be proved by the defendant pleading it by the greater weight of the evidence or the preponderance of the testimony. And that makes it necessary for me to define that term to you, the greater weight of the evidence, and I charge you that the greater weight of the evidence means nothing more nor less than the greater weight of the truth, as you the jury find the truth of the controversy to be, from the evidence adduced upon the witness stand. More accurately defined, perhaps, greater weight of the evidence means that portion or that part of the evidence that carries to the minds of the jury the greater conviction of the truth of the controversy under investigation.
I charge you also, that even where the alleged libel is printed under circumstances and conditions which would make it qualifiedly privileged, the plaintiff may, nevertheless, still recover if he shows that the publication was actuated by actual malice; and the protection of the privilege is destroyed if and when the plaintiff shows to your satisfaction actual malice in the publication, of the article complained of.
This action was brought by J. Clint McClain, the respondent herein, and former Sheriff of Anderson County, South Carolina, for the recovery of damages on account of an alleged libelous publication of and concerning him, against The Anderson Free Press, the appellant herein. The publications forming the basis of this action by the respondent appeared in the issues of the newspaper of appellant on May 31, 1956 and June 11, 1956. The complaint alleges the publication by the appellant, in its weekly newspaper, of a letter written by Dr. T.W. Martin to the editor, in which the author states that his brother, the deceased Frank Martin, had admitted to him that he was paying money for protection and immunity from arrest and prosecution for illegally selling liquor. The colloquium and the innuendo assert that this was intended, and understood by the readers of the newspaper, to mean that the deceased brother of Dr. T.W. Martin was bribing the Sheriff, the respondent in this case. The appellant, by way of answer, plead the defense of truth and qualified privilege.
The undisputed testimony shows that the respondent had been Sheriff of Anderson County, South Carolina, for eight years and that at the time of the publication of the alleged libelous article, he was engaged in a campaign for re-election, in which he was defeated.
It further appears that Frank Martin, a middle aged man, had a widespread reputation for dealing in illegal liquor, although he had never been apprehended, or a case made against him, by either the local, state or federal authorities. Frank Martin committed suicide on May 16, 1956.
It appears that the appellant is the publisher of a weekly newspaper in Anderson and that on May 31, 1956, twelve days before the primary election for the office of Sheriff, and other county officials in Anderson County, there was published in said newspaper a statement of Dr. T.W. Martin, a practicing physician at Belton, South Carolina. It further appears that on June 11, 1956, one day before the primary election, the appellant republished a portion of the foregoing article of Dr. Martin under a headline reading "Charges of Corruption Unanswered by McClain", and the following:
"Dr. Martin, well known physician who has practiced his profession in Belton since 1931 and is a Deacon in the Belton First Baptist Church stated `My brother boldly and repeatedly boasted to me that he was paying protection and immunity.'"
We will assume that the articles published in the newspaper of the appellant were libelous per se. However, if the appellant established its affirmative defense of the truth of the statements contained in the publication, such would be a good defense.
The case was tried before the Honorable J. Henry Johnson, with a jury, and resulted in a verdict for the appellant.
Upon the trial of the case, the appellant, in order to establish its affirmative defense, produced a number of witnesses who testified that at various times prior to the death of Frank Martin, that he had told them he was paying money for protection and immunity. One of these witnesses testified specifically that Frank Martin told him, referring to the respondent, "I pay him $25.00 a week myself to let me alone." Some of the other witnesses testified that Frank Martin had, at different times, declared and admitted to them separately, that he was paying bribes for immunity from arrest for selling liquor.
The respondent objected to the admission of the testimony given by the several witnesses as to the statements made to them by Frank Martin, deceased. The basis of the objection was that the evidence was obnoxious to the hearsay rule and did not come within any of the exceptions to such rule. The trial Judge admitted the testimony as evidence.
The trial Judge instructed the jury that,
"A publication made in good faith concerning the activities of a public official is privileged, and there is a presumption that such publications are made in good faith, because such publications concerning public officials is required by the public good, if the charges made in such statements are true."
"There is a presumption that such publications were made in good faith pursuant to the newspapers duty to the public."
The trial of this case resulted in a verdict for the appellant. The respondent moved for a new trial upon three grounds.
The Court granted the motion for a new trial on two of such grounds. (1) That he had committed error in permitting the witnesses above referred to to testify to alleged conversations had by them with Frank Martin, now deceased, on the ground that such testimony was hearsay and inadmissible. (2) That he was in error in charging the jury, at the request of the appellant, as is hereinabove quoted. The appellant, is before this Court challenging the correctness of the Order of the trial Judge in granting a new trial.
The first question for determination on this appeal is stated by the appellant to be the following: "Did the Court err in holding that in South Carolina, in a civil case, testimony is not admissible, as an exception to the hearsay rule, of declarations or admissions made by a person, since dead, contrary to his penal interest and which might subject him to infamy and penal consequences."
Hearsay evidence has been defined as that which derives its value, not solely from the credit to be given to the witness upon the stand, but in part from the veracity and competency of some other person. The real basis for the exclusion of such evidence lies in the fact that hearsay testimony is not subject to the test which can ordinarily be applied for the ascertainment of the truth of the testimony. Hearsay testimony is made without the sanction of an oath and without the declarant being under a responsibility to answer for the crime of perjury in making a willful falsification. 20 Am. Jur., Evidence, paras. 451-452, at pages 400-401.
In the case of Cooper Corporation v. Jeffcoat, 217 S.C. 489, 61 S.E.2d 53, 55, Mr. Justice Taylor quotes with approval from 20 Am. Jur., Evidence, para. 452, at page 400, and states the reason why hearsay testimony is objectionable. From his Opinion we quote the following:
There can be no doubt but that the testimony of the several witnesses as to what Frank Martin, deceased, had told them, was hearsay. Appellant contends, however, that the testimony falls within an exception to the hearsay rule as being a declaration against penal interest and hence admissible in evidence.
In Jones on Evidence, 4th Ed., Vol. I, para. 323 at page 600, it is said:
"Having considered elsewhere the admissibility in evidence of admissions and declarations against interest by parties and those in privity with parties, we turn now to a related class of declarations against interest — that is, those made by a person who is neither a ...