(August Term, 1851.)
1. A person is not answerable in an action of slander for anything he says in honestly preferring. before a judicial officer, complaints against an individual for offenses alleged to have been committed by him; and prima facie every application is to be deemed honest and to have been made upon good motives until the contrary be shown.
2. In such cases, whether the party complaining acted bona fide or from a wicked and malicious mind is always an open question. The opposite party, therefore, is at liberty to prove malice either by express evidence or by attending or collateral circumstances.
3. In an action of slander, evidence of the sense in which the words were understood by the hearers must be of the sense in which they were understood at the time they were uttered.
4. Although a juror may sit on the trial, against whom there was good cause of challenge, yet the party, by not having made the objection in time, waived it.
APPEAL from Settle, J., at YANCEY Spring Term, 1851. (378)
Action for words spoken with the intent to charge the plaintiff with having stolen biscuits. Plea, not guilty. The declaration stated that a report had been in circulation that the plaintiff had stolen some biscuits belonging to one Elisha Hunicutt, and that the defendant, speaking of the plaintiff and of the said report, said, in the hearing of divers persons, of and concerning the plaintiff: "I will make the biscuits roar under the cloak before Saturday night," with inuendoes and averments, applying the words to the plaintiff, and that the defendant meant thereby, and was understood by the hearers, to charge her with feloniously stealing the biscuits.
On the trial, two witnesses deposed that on a certain day the defendant and the plaintiff's father had a dispute about a line and fence between them, and the plaintiff passed by the defendant and the witnesses, and the defendant said, "If they do not mind, I will make the biscuits roar under the cloak before Saturday night." But each of the witnesses said he did not understand what the defendant meant. Another witness, L. Phillips, deposed that he was a justice of the peace, and that on the day spoken of by the other witnesses, the defendant asked him what he would think if he were to see a woman take a parcel of biscuits and slip them under her cloak, and he answered that he would think it was stealing, and thereupon the defendant told him he wanted a State's warrant, and said that on the day he was talking with the other two witnesses, "as a certain woman passed by, and he said he would make the biscuit roar before Saturday night, and she looked worse than any one he had ever seen." The witness further deposed that he had previously heard of a report that the plaintiff had stolen biscuits at Hunicutt's, and he understood the defendant as alluding to the plaintiff, and that he intended to charge her with stealing those biscuits; that he, the witness, declined issuing the warrant at that time, and promised to attend to it at some other time, but the defendant made no (379) further application.
The counsel for the defendant insisted that the action would not lie, because the words were not understood by the first two witnesses in the sense imputed to them in the declaration, and because the communication to Phillips was for the purpose of obtaining a warrant for the felony, and was, therefore, privileged. The counsel for the plaintiff insisted, on the other hand, that the communication to the magistrate was not privileged; and, further, that, although the two first witnesses did not at the time understand the defendant's allusion, the action will lay if they afterwards heard the report, and then understood the defendant's allusion, or if they believed the defendant really meant to charge the plaintiff with larceny, and other persons besides those two witnesses were present, who might or might not have understood the allusion.
The court instructed the jury, if they believed the application to the magistrate was bona fide for the purpose of obtaining a State's warrant and for no other purpose, the defendant was not answerable for the words then spoken, but that if he had any other purpose, then the defendant was answerable in this action; and that, for the purpose of arriving at the defendant's intention, the jury should consider all the circumstances, including the facts, if the jury believed the witness, that the defendant did not at the time insist on then having a warrant nor apply for one afterwards. The presiding judge did not express any opinion on the other points insisted on in the argument of the plaintiff's counsel to the jury, and was not requested to give any instructions on them. The jury found for the defendant, and the counsel for the plaintiff moved for a venire de novo upon the ground of error in the instructions as to the words spoken to the witness Phillips and in his Honor's not giving any instruction on the other two questions made in the argument, and also because one of the jurors on this trial had been on (380) a jury on a former trial of this case and then concurred in a verdict for the defendant. The motion was refused and judgment rendered for the defendant, and the plaintiff appealed.
N.W. Woodfin for plaintiff.
Gaither for defendant.
The privilege of charging persons with offenses in a judicial proceeding, or with a view to one, is given by the law, because the public interests require complaints to be made against offenders, or those really suspected of being such, and the complaints cannot be made without the use of such words as would, if spoken on a different occasion, be slanderous. Hence a person is not answerable for anything he says in honestly preferring a complaint before a justice of the peace; and, prima facie, every application is to be deemed honest and to have been preferred upon good motives until the contrary be shown, because it is a duty to bring offenders to justice. That, we believe, is all that is meant by the phrase, "privileged communication," namely, that the words are uttered in a legal proceeding, or on some other occasion of apparent duty, which prima facie imports that the party was actuated by a sense of duty and not by the malice which is generally to be implied from speaking words imputing a crime to another. Cockyane v. Hodgkison, 6 Car. P., 543; Johnson v. Evans, 3 Esp., 32. It is always open, however, to the opposite side to prove malice, either by express evidence or by circumstances attending the accusation, or by others that are collateral, as, for example, that the accuser had a particular grudge against the accused and knew the accusation to be unfounded. It is, therefore, the question in all such cases, whether the party acted bona fide in making the complaint or from a wicked and malicious mind. It follows that the instructions to the jury were as strong as they could possibly be, with any regard to the rights of the defendant, (381) being, that if he had any other purpose beside that of bona fide in instituting a prosecution against the plaintiff, she would be entitled to recover, and allowing the plaintiff the benefit of the intrinsic as well as all other evidence of some malicious purpose. It is apparent, therefore, that the plaintiff has no ground to complain of the instruction.
There are several answers to the other exception. The silence of the judge is not error, unless he be moved for a proper instruction. Here the party chose to take the chances before the jury without the help of the court on either of the two points. But if instructions had been asked, they ought to have been refused. The declaration is that the words — not importing, per se, a charge of larceny by the plaintiff — were meant by the defendant to be so understood by those to whom they were spoken, and were then so understood by them. Hence the court held, in this case, on a former occasion, that the plaintiff might give evidence as to the sense in which the hearers understood them. But that must of necessity be referred to the time of speaking the words, else it might happen that the words would be understood differently at different times, and be actionable or not, as the witness might apprehend their sense, more or less correctly, from time to time. Besides, there was no evidence that the report subsequently reached the two witnesses, or that it imparted to them a better understanding of the defendant's meaning; and the court ought not to submit a point to the jury on which there is no evidence. This observation is equally applicable to the other point, as it did not appear that any other person was present when the defendant spoke the words proved by the two witnesses, or that such person, if present, understood the allusion to be to the plaintiff.
There was good cause of challenge to the juror. But that does not vitiate the trial, for the juror might have conceived that he was bound to serve, and by not making the objection the party (382) waived it.
PER CURIAM. No error. Cited: Shelfer v. Gooding, 47 N.C. 182; S. v. Patrick, 48 N.C. 447; S. v. White, 68 N.C. 160; Sowers v. Sowers, 87 N.C. 306; Nissen v. Cramer, 104 N.C. 576; Gudger v. Penland, 108 N.C. 600; S. v. Council, 129 N.C. 517.