41 Ky. 214 | Ky. Ct. App. | 1841
delivered the Opinion of the Court.
■ The Circuit Court having sustained each of four demurrers to four several counts in an action of slander instituted by Dr. Thomas W. Jackson against Dr. Joseph Weisiger, the only question now presented for revision is, whether any one of those counts exhibits a good cause of action.
All the counts aver that Weisiger falsely and maliciously uttered of Jackson, that he bad forged a letter purporting to have been written by Weisiger <$■ Fleece to John G. Meaux.
The second count is the only one which attempts to exhibit the contents of the letter, and from this it appears to have been commendatory of Jackson as an eminent physician, concluding with the following suggestion, apparently intended as a corroborative illustration: “Had “we not considered him such, we never would have taken “him, info partnership with us; our association would “have been published long since, but having refused “some one of our near connexions the same favor a sense “of propriety prevented it.”
The first and most important question is, whether words imputing to Jackson the unauthorized fabrication of that letter could, under any circumstances, be, in
Interpreting the letter on its face, unaffected by any intrinsic fact, it neither imports a transfer or extinguishment of any right, or an obligation for money or other thing, nor purports to have been even designed as evidence of a partnership, to be used for the fraudulent purpose of depriving Weisiger <$• Fleece of their property. The letter purports to have been written for the purpose of repelling imputations injurious to Jackson, and of commending him to the favorable consideration of Meaux; and, as before intimated, it alludes to a subsisting partnership, apparently for the purpose of illustrating, the good opinion thus expressed of. his merits.
The fabrication of such a letter, for-such a purpose, though very discreditable, would not have been a technical forgery or other criminal offence punishable by either the common or statute law of Kentucky.
But if he wrote that letter, and then had either brought or intended to bring a: suit to recover from Weisiger cf-Fleece a portion of tfaS profits-of their practice, unjustly claimed by him as a co-partner with them, and if, also, he forged the letter with- the corrupt design of rqaking false evidence in support of that claim, and of thereby fraudulently depriving them of their property, Jackson was, in our judgment, guilty of forgery-for which he might be infamously punished mí3er a statute of 1814, which denounces such punishment for fofging “any writing “whatever, whereby fraudulently to obtain the possession “of, orto cause any person to be deprived of any property whatever.”
We do not feel authorized to give to this enactment such an interpretation as would exclude from its denunciation “any writing whatever,” forged for.the fraudulent purpose of depriving another of his money by thus making false proof of an unjust title to it.
We cannot doubt that the forgery of articles of part, nership would be embraced by the denunciatory statute of 1814, and we cannot perceive any essential difference
But, as the letter in this case does not purport to have been written for any such criminal purpose, the second, and third counts are insufficient; because neither of them exhibits any extraneous fact indicating awy illegal motive.
The first and fourth counts, however, aver that Jackson, claiming to be a co-partner with Weisiger ($■ Fleece, in the practice of medicine, had sued them in chancery for a third of the profits, and had filed, as evidence, “a letter recognizing” such a parthership. And the fourth count also avers that, in a conversation respecting that suit, Weisiger published of Jackson that he “had forged the letter,” and also that he had written it to defraud Weisiger and Fleece. But the first count, which charges the same words, refers to no colloquium whatever, and in charging the slanderous words, does not identify any letter.
Charging a person with forging a letter, without saying-more, does not, in our opinion, either necessarily or according to the presumed understanding of the hearer, impute a criminal offence. The import of such a charge is at leapt as ambiguous and indeterminate as that of being “a rogue,” or “foresworn;” and for the like reasons, the charge that a letter had been “written” by one person “to defraud” another, should not be deemed actionable, slander per se, and especially as. such a charge does not import that the letter was not in the name of the writer himself.
As, therefore, the first count does not,- in any way,' refer to any extraneous fact as the subject of conversation, nor sufficiently describe or identify the letter, we cannot presume that the bystanders understood the words charged in that count, as imputing a technical forgery of such a letter, and for such a specific and illegal purpose ■as to constitute the act a crime punishable by our local law; and therefore, that count also is, in our opinion, in. sufficient on demurrer.
And the-fourth count, though more formal and less imperfect than the first, seems to us to be equally insufficient in its legal ¿effect; for the only colloquium to which it refers, was concerning the suit; and neither by showing the purport of that conversation nor, otherwise, does it create the legal presumption that the persons, to whom the words as charged were published, understood or had ever heard that the letter alluded to had either been used as evidence in that suit dr been written for'that - purpose, or even what letter was intended.
The words as charged in this last count, do not, therefore, in our opinion, import either necessarily or by legal presumption, a distinct and intelligible imputation of a crime, for which Jackson might be punished by a public prosecution in the name of the Commonwealth, and this defect cannot be supplied by inuendo.
Those words, as charged, are consequently not clearly actionable. *■
The judgment of the Circuit Court is, therefore, affirmed.
