Watters v. . Smoot

| N.C. | Aug 5, 1850

This was a case for slanderous words spoken of the plaintiff, Mrs. Watters.

The words charged the plaintiff with criminal intercourse with one Nelson Haggins. In support of his plea of justification the defendant offered no proof in reference to Haggins, but offered to prove that Mrs. Watters had had criminal intercourse with other men, and the plaintiff, her husband, had on several occasions said she was guilty of such intercourse with men other than Haggins. This testimony was objected to, but was received. There was a verdict for the defendant, and from the judgment thereon the plaintiffs appealed.

The question is, Where the words make a charge of incontinence with a particular individual, can the plea of justification be supported by proof of criminal intercourse with other men? or must the defendant make good his plea by proof of such intercourse with the individual named? A (316) charge that the plaintiff stole the hog of A is not supported by providing that he stole the hog of B. When the charge is general, as that the plaintiff is guilty of larceny or of counterfeiting, the plea sets out some particular act of larceny or of counterfeiting, so as to make the issue certain; and in this case the defendant has the advantage of being able to put his defense upon any particular act of the kind which he thinks he can prove. But when the charge is particular, and the defendant, at the time he speaks the words, selects a specified offense, he is bound by it, and his plea must rest on that particular matter. This is obviously right, because, having, for the sake of giving point and force to his charge, gone into particulars, and having had the advantage of thereby making his accusation the more plausible, he has no right to complain that he is not allowed to make a departure, and run over the plaintiff's whole life to see "if there be no shame in it." This is a well-settled distinction in slander, and we see no reason to find fault with it.

The statute which gives the present action provides that it shall be prosecuted "under the same rules and regulations as have been heretofore observed in the trials of actions of slander"; and we are not at liberty, if we were so disposed, to give defendants in this action any greater latitude than they are entitled to in the common-law action.

Our attention was called, in the argument, to Snow v. Wicker,31 N.C. 346" court="N.C." date_filed="1849-06-05" href="https://app.midpage.ai/document/snow-v--witcher-3662212?utm_source=webapp" opinion_id="3662212">31 N.C. 346. There is nothing in that case opposed to our present decision. There the charge was general. The defendant had selected no individual with whom he had connected the plaintiff, and the substance of that case is that conception and delivery did not make a part of the charge, and for that reason need not be proven. It was enough for the defendant, (317) by his plea, to aver that the plaintiff had had criminal intercourse with the witness. But here the charge isparticular. The defendant, at the time he spoke the words, selected Nelson Haggins as the man, and he cannot be allowed in his plea to shift his ground.

The declarations of the husband ought also to have been rejected, because he did not allude to Haggins. We do not concur in the other reason suggested, that his wife ought not to be affected by his declarations. He is a party of record, is bound for the costs, entitled to the recovery, and could not be examined as a witness. The influence that such declarations ought to have is for the jury.

PER CURIAM. Judgment reversed, and venire de novo.

Cited: Sharpe v. Stephenson, 34 N.C. 350.