| N.C. | Jun 5, 1849
This is an action on the case, under the act of 1808, for a charge of incontinence. The first count alleges that the defendant Judith, who is the wife of the other defendant, made the charge by using the words, "she had lost a little one." The second count, by using the words, "Zilphy Sims is a credit to her," Zilphy Sims being a woman whose general character was that of a base, lewd and incontinent person. The third (347) count, by using the words, "She better be listening to the report about herself losing a young one."
The defendants pleaded justification, and, on the trial, introduced a witness who swore that he had, on several occasions, had criminal intercourse with the plaintiff. The court charged that the plea of justification should aver the truth of the charge, as laid in the declaration, and that this evidence, if believed, did not establish the plea.
There was a verdict for the plaintiff, and the defendants appealed. Assuming that the declaration contains a colloquium and introductory matter sufficient to warrant the innuendoes, we think the judge erred in holding that the evidence, if believed, did not make out a justification. When the charge is made directly, the plea should aver the truth of the charge as laid in the declaration; but when the charge is made by insinuation and circumlocution, so as to make it necessary to use introductory matter to give point to and show the meaning of the words, the plea should aver the truth of the charge which the declaration alleges was meant to be made. If the words are, "Britain is as deep in the mud as Welch is in the mire," and the declaration, with proper introductory matter, alleges that these words were meant to make a charge of passing counterfeit money, the plea should aver that the plaintiff was guilty of passing counterfeit money. In this case, the declaration alleges that the words used were meant to make a charge of incontinence, and the plea should aver that the plaintiff was incontinent, which averment would be fully proved by the evidence of *239 the defendants' witness, if believed. His testimony, if true, showed that the plaintiff was not one of those "innocent," chaste women, whose "unsullied purity" the recital (348) declares it was the intention of the act to protect.
But it is insisted that the words, "she had lost a little one," not merely charge that the plaintiff was incontinent, but that she had brought forth a bastard child, and that the plea should aver this fact and the evidence show it to be true.
Conception and delivery are the mere effects of nature — there is no harm in them per se. The guilt lies in the criminal intercourse, which is made neither greater nor less by the collateral circumstances of conception and delivery, although these circumstances may be considered unfortunate, as leading to detection and exposure. Criminal intercourse is the gist of the charge, and is all that the plea need aver or the evidence establish.
The learned judge erred in holding that conception and delivery, which are in themselves innocent, constituted a part of the substance of the charge, and ought to have been averred and proved.
In the second count the charge is that the plaintiff was a "base, lewd and incontinent woman." The words "base and lewd" are not actionable, for "lewd" means "lustful, libidinous," but does not import criminal indulgence; so that "incontinent" is the actionable word which, by the evidence, was established.
In the third count the charge is, "She better be listening to the report about herself losing a young one." The defendants are not called upon to prove that there was such a report, nor would it avail them as a justification if they did. They must aver and prove the matter alleged to have been reported, to be true, to wit, that the plaintiff was incontinent and unchaste.
The gravamen of the action is a false and malicious charge of incontinence and a want of chastity.
It is unnecessary to allude to the other points made. (349)
The judgment must be reversed, and a venire de novo be issued.
PER CURIAM. Judgment accordingly.
Cited: Watters v. Smoot,