53 N.C. 66 | N.C. | 1860
Plaintiff declared in two counts:
First. "You stole old John Henly's canoe."
Second. "You as good as stole old John Henly's canoe."
Plea: General issue.
Evidence was submitted to the jury on both counts. The (67) counsel for the plaintiff requested the court to charge the jury that the second court was actionable per se. His Honor declined giving the instruction asked, but told them that the first count was actionable perse, but as to the second count, he submitted it to the jury as actionable, or not, as they might find that the defendant did, or did not, intend to charge the plaintiff with stealing the canoe. Plaintiff's counsel excepted.
Verdict and judgment for defendant. Plaintiff appealed. The law has been substantially administered in this case, and the appellant has no just ground of complaint. We are clearly of opinion that the words in the second count ought not to have been pronounced actionableper se by the court. And whether they ought to have been submitted to the jury as a doubtful idiom, depending upon local usage, or determined by the court as matter of judicial construction, is *52 indifferent to the appellant, for quacunque via data, the result to him is the same.
Upon a submission of the point in dispute to the jury, they found correctly, that the words did not impute the offense of larceny; and, therefore, any error committed by His Honor in turning the matter over to them was, under the circumstances, innocuous.
The words, taken in their most defamatory sense, mean nothing more than that the plaintiff had dealt with the canoe in some way that was equivalent to stealing it. By implication, the idea of the precise offense of stealing is excluded. For it was something like it, but not the felony itself, and as things like are not the same, it follows it was not stealing with which the plaintiff was accused. It is well settled in North Carolina that defamatory words, actionable per se, must impute an offense for which the accused, if convicted, would suffer punishment of an infamous nature; a matter of moral taint short of this would not do. (68) No such offense is imputed by the terms used, and therefore the words of themselves are not actionable. Brady v. Wilson,
We have treated of the words in question, in deciding upon their import intrinsically, as they are found in the declaration, without the help of explanatory averments of any kind. As they have not been helped bycolloquium and innuendo, whose office it is to give an actionable meaning to words otherwise uncertain or innocent, we suppose they could not be so aided. Indeed, we take it, the words constitute a form of expression frequently resorted to by persons not precise or definite in their use of terms, to indicate a trespass or breach of trust, involving a moral guilt equal to theft. No such imputation constitutes legal slander in North Carolina, as will be seen by reference to the case above cited.
The cases in the early English Reporters which have been brought to our attention are not all reconcilable with each other, but this general principle runs through and governs most of them, that the words must charge a crime directly, or by necessary implication. Thus in Halley v.Stanton, Croke Charles, 269, these words, "He was arraigned for stealing hogs, and if he had not made good friends, it had gone hard with him," were held actionable, because the latter words, "if he had not made good friends," etc., showed that the speaker believed the truth of the accusation; while in Bayly v. Churrington, Croke Eliz., 279, the words, "thou wert arraigned for two bullocks," were held not to be actionable, because the words do not charge stealing, but only an accusation of it. So, in a later case of Curtis v. Curtis, 25 E. C. L., 206, the words, "you have committed an act for which I can transport you," are *53 held actionable, for it shall be intended he had committed some crime for which he was liable to transportation. The case is said to be similar in principle to Donnes' case, Croke Eliz., 62, where the following words were held to be actionable: "If you had your desserts, you had been hanged before now." It shall be intended that the speaker (69) meant he had committed a crime for which he deserted to be hanged.
Drummond v. Leslie, 5 Blackford (Ind.), 453, is in conflict with the current of English cases, and, certainly, with ours.
Whatever fluctuation of opinion the cases abroad may present, we think the law is settled in North Carolina to be as above stated: That words are not actionable per se, except they impute an offense subject to infamous punishment, directly, or by intendment, to be made manifest by proper averments.
PER CURIAM. No error.
