| N.C. | Jun 5, 1829
FROM BURKE. The declaration was in the following words:
"Mary Watts complains of John M. Greenlee, in custody, etc., of a plea, etc., and whereupon the said Mary, by, etc., complains that she, being a person of good fame and reputation, and so esteemed by all persons, and never having been guilty of the infamous acts imputed to her by the said J. M. G., as hereinafter stated, nevertheless the said J. M. G., being an evil-minded person, and intending to slander her in her good name, fame and character, on, etc., in, etc., did falsely and maliciously publish of her, the said M. W., the following scandalous words, to wit: "She, the said M., is big (meaning big with child to his negro Ben). That all Watts's girls (meaning the said M. W. as one of said girls) is with child to negro Ben." He, the said J. M. G., knowing, etc."
There was another count, similar to the one above in all respects, charging the words as being "she" (meaning the said M. W.) "is incontinent." Words not in themselves actionable may be rendered so by a colloquium, or by something extrinsic, with the aid of aninnuendo. In such cases it is necessary that the colloquium and extrinsic facts, commonly called introductory matter, should be put upon the record, that the Court may see that the jury have drawn (118) a rational and probable conclusion. For, notwithstanding the jury are the judges of the facts, and of all inferences to be drawn from facts, yet it is the province of the Court to decide whether one fact can be inferred from another. Hence arises the distinction between relevant and irrelevant evidence. The Court decides the question whether one fact can or may be inferred from another. The jury determine whether the inference insisted on be correct or not in the particular case. The words are "all Watts' girls are big." There is no colloquium charged by which any other than the ordinary meaning of the words can be given to them. They are to be taken abstracted from any context, for none appears. The innuendo is, "thereby meaning big with child to his negro, Ben." It is going far enough, and perhaps too far, without acolloquium or introduction to say that big means big with child; but there cannot be the least pretense for saying it means big with childby negro Ben. The innuendo, therefore, which the jury have inferred was quite unwarranted; at least there is nothing stated which shows that it was warranted. That must appear, or the declaration is bad; for *74 otherwise juries would be quite arbitrary in giving to words such a meaning as they pleased. If this was the defendant's meaning, the words are actionable; and had a colloquium or introductory matter been stated, which showed that this might have been his meaning, it would have sustained theinnuendo which the jury have affirmed. The verdict being general upon all the counts, and this being defective, the judgment must be arrested.
Other objections were made, which I will only slightly notice, the one before mentioned having put an end to the case. It is objected by the defendant that it was not stated that he gave publicity to the charge; that the word "publish" does not sufficiently convey that idea. (119) But for my part, I can scarcely conceive a word in our language which more definitely conveys the idea requisite in law to support an action for speaking slanderous words. Publish is to proclaim, to make known generally. It needs not the epithet palam, which was relied on, for palam promulgare is to publish.
It is objected that the words "the plaintiff is incontinent" required acolloquium or introduction to make them actionable. Incontinent is the word used in the statute; it would be strange that the Court should require the jury to tell them the meaning of a word thus used, and the argument amounts to that. It is true that where a statute declares that he who commits a certain crime — murder, for instance — shall suffer death without benefit of clergy, in an indictment on that statute it is not sufficient to say that the defendant committed murder, but it must be shown how. But in a civil action the rule is different; it is not necessary to show how the plaintiff is incontinent — with whom, for instance — there being no prosecution against her for incontinence. This would have been a more apt illustration than the case of murder. But the question is, what did the defendant mean by the word incontinent, which cannot be understood, when generally applied to a female, to mean anything else but that she is unchaste? If there were facts or circumstances which showed such was not his meaning the defendant should have shown them. It was not incumbent on the plaintiffs to prove the reverse. But the errors in the count before mentioned are fatal.
PER CURIAM. Judgment arrested.
Cited: Briggs v. Byrd,
(120)