The opinion of the court was delivered by
A person cannot be a thief without he has stolen something. To charge a person with being a thief, is to charge him with larceny. A person might be called a thief in such a manner, or in such connections, as to indicate that a charge of larceny was .not intended. But if a person is called a thief, and nothing more appears, it is, to common intent, a charge of larceny, and is actionable. Penfold v. Westcote, 2 N. R. 335 ; Townshend on Slander and Libel, 197. A declaration in an action for slander that sets forth the calling of the plaintiff a thief by the defendant, to, or in the hearing of, others, without any colloquium more than that the words were spoken of the plaintiff, is good. Gaselee, J., in Curtis v. Curtis, 10 Bing. 477 ; Robinson v. Keyser, 2 Foster, 323. Each count in this declaration sets forth that the defendant spoke such words concerning, the plaintiff to other persons, and it was properly adjudged to be sufficient.
The. offer of the defendant to show that in speaking the words declared for, he referred to the taking of some apples, which was not stealing, was not accompanied by any offer to show that the other persons who heard the words did so understand, or could have so understood him. Without such proof, it would not appear but that the reference to such a transaction remained secret to himself, and if it did, it would not vary the effect of his words.
The offer to show the state of feeling between the parties, was not such as would show the words to have been spoken in the heat of sudden passion that arose on provocation by the plaintiff, but rather that they had their origin in malice. The fact of existing difficulties between them, would not tend to disprove malice, and could not properly have any effect to mitigate damages. There appears to have been no error in the exclusion of evidence.
Larceny, except of property of limited value, is punishable by imprisonment in the state prison. The charge made by the de^ fendant was, of larceny without limitation, or anything to give
Judgment affirmed.