Opinion
(June Term, 1841.)
Where a man utters slanderous words of another, and at the same time avers that he can prove their truth by a third person, whom he names, this last averment is no mitigation, but rather an aggravation of the slanderous charge, and tending to prove malignity in the speaker.
ACTION on the case for slander, tried at March Term, 1841, of PITT, before Settle, J. The plaintiff in his declaration charged the slanderous words in three counts, as follows: In the first count, "You stole my peas, and I can prove it"; in the second, "You stole my peas"; in the third, "You stole peas." The plaintiff proved on the trial that the defendant said, "You stole my peas, and I can prove it by John Hodges," and rested his case. Whereupon, the defendant, contending that the additional words, "by John Hodges," were a material qualification of the charge, and did not sustain the charge as alleged, moved that the plaintiff be nonsuited, which the judge declined doing. The plaintiff then called another witness, A. Parker, who proved the words as alleged in the declaration in the first count, and his honor charged the jury that if they believed the witness, A. Parker, the plaintiff had proved the words laid in the first count in the declaration. The jury found for the plaintiff on the first count. A motion was made by the defendant for a new trial, and overruled by the court, and judgment being rendered for the plaintiff, the defendant appealed to the Supreme Court.
No counsel appeared for plaintiff.
J. H. Bryan for defendant.
The substance of the declaration consists in the charge made by the defendant, that plaintiff had committed a felony, which charge, if true, would subject him to an infamous punishment. The words, "You stole my peas," contain a sufficient charge of felony to support the action. The superadded words, "and I can prove it," were not necessary to support the declaration; they were words of aggravation, or as tending to show malignity in the speaker. The first witness proved that the defendant spoke the words which made up the gist of the declaration. The additional words, "I can prove it by John Hodges," were not by any means a material qualification of the charge; for if the plaintiff had stolen the defendant's peas, he was equally guilty of a felony, whether the fact could be established by John Hodges or any other person. The defendant did not say that John Hodges had first spoken the words, and that he had only related what he had heard from Hodges; but the evidence was that he, the defendant, first spoke them, and then and there declared that he could establish the truth of them by the testimony of John Hodges. It seems to us that the plaintiff would have been entitled to recover upon the testimony of the first witness; the evidence of Parker was but confirmatory of that given in by the first witness.
PER CURIAM. No error.
Cited: S. v. Mills, 116 N.C. 1052.
(399)