The action was commenced before C. D. Rountree, a justice of the peace, with the issuance of a warrant against the defendants, charging them with libelling Joseph McLawhorn, sheriff of Pitt County. Upon the preliminary hearing the magistrate found a case of probable cause against the defendants and they were bound over by him to the County Court of Pitt County. When the case was called for trial in the County Court, Hon. F. M. Wooten, the county judge, announced from the bench that he would not try the case for the reason that he was a stockholder in defendant company, and thereupon, of his own motion, transferred the cause to the Superior Court of Pitt County for trial, where it was duly docketed, and for three regular terms of said court was continued by the presiding judge upon motion of defendants. The case came on for trial at the November Term, 1919, and without objections from defendants the trial proceeded upon the original warrant. Upon the evidence the defendants were found guilty by the jury, and adjudged by the court to pay a fine of $100 each, and the cost, from which judgment defendants appealed.

HOKE, J.

On the hearing it was made to appear that in June, 1918, defendants had published an editorial comment as to the conduct of the prosecutor, Joseph McLawhorn, then sheriff of Pitt County, and a candidate for renomination at the approaching primaries, charging, in effect, that the prosecutor had been unfaithful and criminally negligent in the performance of his official duties in reference to enforcing the statutory provision applicable to deserters and slackers, under the Federal draft acts, and containing allegations that the recent killing of one of these deserters in the effort to arrest him was indirectly due to this misconduct on the part of the sheriff and the demoralized condition thereby created. There were also facts in evidence on the part of the State tending to show that these charges were false and permitting the inference that the publication was malicious. For the defendant there was evidence tending to show that the allegations were true, or that the publication was made under the fair and reasonable belief that they were true and so not malicious.

With this opposing testimony the court instructed the jury on the issue as follows: "If you find from the evidence in this case, beyond a reasonable doubt, that the defendant, the Greenville Publishing Company, published the alleged article by and with the procurement or consent of its managing editor, James L. Mayo, of and concerning the prosecuting witness, in which it stated words to the effect that he procured and counseled his son to remain out of service of the United States army after his desertion therefrom, or by advice aided and abetted him in doing the same, then this accusation charges him with a crime punishable by indictment, and is libelous per se; and the law presumes malice, and the defendants, both of them, nothing else appearing, would be guilty as charged in the warrant, and you should so find." And further: "When malice is shown, or presumed by law, the burden then shifts to the defendant to show to the jury, not beyond a reasonable doubt, but to your satisfaction, if they can, that the publication was not a malicious publication, but that it was founded upon information which they reasonably believed to be true, amounting to probable cause for comment, and you are the judges of the reasonableness of the belief of the truth of the information. Mere color of lawful occasion and pretense of justification is not sufficient, but this belief must be founded upon reason, and you are the judges of the reasonableness of the same, or that the said statement of and concerning the prosecuting witness, was in fact not false but true, and if the defendants or either of them, have so satisfied you of both or either of these facts, then they would not be guilty and your verdict should be not guilty."

To these instructions defendants have duly excepted and assigned the same for error.

Recognizing that it is the public interest that the conduct and qualifications of officials and candidates for public office should be subjected to free and fair criticism, and discussion on the part of their constituents, it is held for law in this jurisdiction that such criticism presents a case of qualified privilege and in order to a conviction of libel by reason of a defamatory publication of this character it must be shown that it is both false and malicious and our decisions on the subject are to the effect further that the "falsity of the charge is not of itself sufficient to establish malice, there being a presumption that such a publication is made in good faith." True, the malice referred to is not necessarily that of personal ill will or malevolence; it may be said to exist when it is shown that the publication is made from some ulterior motive and it may be inferred where a defamatory statement is knowingly false or made without any fair or reasonable grounds to believe in its truth, or, at times, from the character and circumstances of the publication itself, but with the exception, probably, that a man's general moral character is presumed to be good until the contrary is shown, this being, as stated, a case of qualified privilege, the burden is on the State to show and, in a criminal prosecution, to show beyond a reasonable doubt, that the defamatory charge is both false and malicious. Lewis v. Carr, 178 N.C. 578; 101 S.E. 97; Riley v. Stone, 174 N.C. 588; Osborn v. Leach, 135 N.C. 628; Ramsay v. Check, 109 N.C. 270; 17 R. C. L., 417-418; title Libel and Slander, secs. 177-178.

Recurring to the portions of the charge objected to, we do not think the defendants have been given the benefit of the principle to which we have adverted. For, being of opinion that the defamatory article amounted to the accusation of a serious criminal offense, his Honor held, in effect, that the law would imply malice and placed on the defendants the burden of repelling the imputation. In the case of Lewis v. Carr, supra, the article undoubtedly contained a charge of crime and yet, being a case of qualified privilege, the court ruled that the burden of showing malice remained upon the State. Again, we are of opinion that the evidence offered by defendants to the effect that "there was general complaint in the county at the time, of the negligence of the sheriff in the enforcement of the law as to deserters and slackers" should have been received. True, evidence of this kind is not ordinarily competent to show the truth of a defamatory charge, but it is relevant as tending to show good faith on the part of defendants, a county newspaper and its editor, in making the publication.

There is no merit in the objection made by defendants to the jurisdiction of the court. The statute establishing the Inferior Court of Pitt County, after declaring this and various other offenses, committed to its jurisdiction petty misdemeanors, provides that the same may be tried on the warrant of justices of the peace, acting as committing magistrates. In sec. 3 of the statute authority is conferred on the judge of said Inferior Court to transfer any and all causes to the Superior Court of Pitt County for trial. The procedure thus provided has been pursued in the present instance and in such case it is held that no bill of indictment is required. State v. Hyman, 164 N.C. 411; State v. Lytle, 138 N.C. 738.

For the errors indicated, however, the defendants are entitled to a new trial of the issue, and it is so ordered.