Linville v. Earlywine

Dewey, J.

Earlywine, an infant, declared by his next friend against Linville, in slander. The declaration contains the usual 'colloquium, but no averment of extraneous facts. The words laid are:—“The sorrel horse is mine and Offutt’s, and Earlywine stole him.”—•“ Earlywine could be sent to the penitentiary for stealing.”—“ Earlywine could be sent to the penitentiary for stealing the sorrel horse.”—“ If he don’t get that horse, I will send him to the penitentiary.”—“tie stole a horse.”-—•“ He could be sent to the penitentiary for stealing 'the sorrel horse.”—“He stole the sorrel horse.” Plea, the general issue. Verdict and judgment for the plaintiff.

Several points arose from instructions refused and given.

1. The Court refused, on motion of the defendant, to charge the jury, that if the plaintiff had not proved his infancy, he could not sustain the action. There was no error in this. The general issue admitted the' character in which the plaintiff sued.

2. The Court refused to instruct the jury, that if the only slanderous words which the defendant had spoken of the plaintiff, were uttered in Kentucky, they must find for the defendant. This refusal was correct. Words, slanderous by the common law, spoken in another state, are actionable in this state. Stout v. Wood, 1 Blackf. 71 .

3. The Court also refused to instruct the jury, that “ if the only words proved to have been, spoken by the defendant of the plaintiff were, ‘ he has taken the horse without leave or license, and if he don’t get him, I will prosecute him for stealing,’ the action could not be sustained.” As the record does not show the evidence, we have no means of judging of the applicability of this instruction to the case. As the charge was refused, we must presume that it was irrelevant to -the evidence, and correctly rejected.

4. On motion of the plaintiff the Court did instruct the jury, *471 that “a charge .of taking a, horse, if spoken under circumstances reasonably conveying the meaning of stealing, is in substance a charge of' stealing;” and, also, “a charge that ‘Earlywine took the horse’ is in substance the same as that ‘Earlywine stole the horse,’ if spoken in such manner as exactly to convey the same meaning.” It is a well established principle in actions of slander, that when, words are uttered which derive their slanderous import from facts, circumstances, or manner, .extrinsic from the words themselves, the declaration TMMt contain an averment of such facts, circumstances, or manner, and connect tWo. by the colloquium with the words as they were spoken. This done, the proof must sustain the averments, and show that the words laid in the declaration, or enough of them to convey the same meaning, were spoken. Stark, on Sl. 272, 289.—Cro. Eliz. 834.—Sweetapple v . Jesse, 5 Barn. & Ad. 27.—Ayre v. Craven, 2 Ad. & Ellis, 2, It is also settled as a consequence of this, principle, that equivalent words—that is, words different from those laid in the declaration, but having the same sense, will not suffice in proof. Wheeler v. Robb, 1 Blackf. 330 . The self-evident proposition contained in the two singular'charges which'were given to the jury, (they both express but one idea,) cannot be said to violate the. first of these principles, because there is no part of the declaration to which to apply it under that rule; but had the declaration showed, that the defendant charged the plaintiff with “ taking a horse,” or that “ he took a horse,” without averring any explanatory circumstances, that principle would have been infringed by the instructions. As applied to the charge of stealing a horse, which is laid in the declaration, the instructions, difficult as it is to give them- any legal signification at. all, had a tendency to mislead the j.ury, and to give them to understand, not only that equivalent words, but words which derived their identity of meaning with that of those laid in the declaration from extraneous matters not averred, were sufficient to support the action. In this view, these instructions are clearly erroneous.

Some other charges were given at the request of the pláintiff, which bear too strong a likeness to those already noticed to need further comment.

Per Curiam.

The judgment is reversed and the verdict set *472 aside, with costs to be paid by the prochein amy. Cause remanded, &c.

C. H. Test and C. B. Smith, for the plaintiff. -D. Kilgore and J. S. Newman, for the defendant.