Opinion
(June Term, 1846.)
In an indictment for a libel the indictment must set forth matter on its face libelous, in which case the court is to judge whether it be so or not; or it must aver that the matter charged, though not on its face libelous, was intended in fact to be so, and then the question is to be submitted to a jury.
APPEAL from CRAVEN Spring Term, 1846; Manly, J.
Attorney-General for the State.
No counsel for defendant.
The defendant was indicted in the following words, viz.:
STATE OF NORTH CAROLINA — CRAVEN COUNTY. Superior Court of Law, Spring Term, 1846.
The jurors for the State, upon their oath, present, that James S. White, late of the county of Craven and State of North Carolina, on the 7th day of December, 1844, with force and arms, at and in the county aforesaid, maliciously and falsely, intending to defame one Silas S. Stevenson and to bring him into hatred and contempt among the citizens of this State, did then and there a certain false, scandalous, and libelous writing of and against him, the said Silas S. Stevenson, falsely and maliciously frame and write and make and then and there did cause to be published in the form of an advertisement, the substance of which said writing is as follows, to wit:
NOTICE. — I have discovered in the public paper that Silas S. Stevenson says that I went to his house for some evil intention, to do him some private injury, or his stock. He is a base liar and scoundrel. I went for no other intention but to search for my stolen property, and his son John was with me all the time. On 26 November, at night, I lost some property. The next morning I got item that it was gone to Silas S. Stevenson's. I immediately pursued and found my property in one of his houses. I made no further plunder, but immediately returned home. The villain (meaning the said Silas S. Stevenson) forgot to say anything about John Dunn's pocketbook. He forgot to tell the people that he is a murderer and forsworn, and is beneath the notice of a gentleman. JAMES S. WHITE.
(419) 7 December, 1844. 76-77pd.
and that the said James S. White, with an intention to scandalize the said Silas S. Stevenson and to bring him into contempt and disgrace, the said false, scandalous, malicious, and libelous writing, as aforesaid, framed and written and made, afterwards, to wit, on the said 7th day of December and on divers other days and times between said day and the taking of this inquisition, in the year aforesaid and in the county aforesaid, to divers good citizens of this State then and there being present, falsely, maliciously, and scandalously did publish, to the great scandal, infamy, and disgrace of the said Silas S. Stevenson and against the peace and dignity of the State.
The defendant offered in evidence the publication contained in a newspaper published in the town of New Bern, in which the alleged libel appeared, signed by the prosecutor, and admitted by the State to have been published by the prosecutor, and which is the same referred to in the alleged libel, of which the following is a true copy, viz.:
CAUTION.
The subscriber hereby forewarns all persons from trespassing on any part of his land in any way whatever, as he is determined to put the law in force against any person who may be guilty; and particularly he hereby forewarns James S. White and boys from hunting with guns or entering, upon any pretense whatever, inside his inclosed land. Said White and boys entered his premises this morning, well armed with guns, no doubt with some evil intention, either to do the subscriber some private injury or to injure his stock. Therefore, he forewarns him and boys, under the severest penalty of the law, from entering any part of his inclosed land. He hopes James S. White and boys will avail themselves of this notice, for if a trespass on his inclosed land should be proved on them, or either of them, the law will forthwith be put in force against them. SILAS S. STEVENSON.
24 November, 1844.
Upon that part of the libelous publication beginning "on 26 (420) November," and terminating "but immediately returned home," the defendant introduced his son, who proved that his father had lost some coleworts, and that he traced them to a place occupied by a tenant of Stevenson's, and found some of the greens in the houses; and the defendant's counsel urged that the proof amounted to a justification of that part of the libel.
In charging the jury upon this part of the case the court submitted the words in question, and told them to consider them in connection with the whole publication, and if the meaning conveyed thereby, according to the usual and most obvious interpretation, was that Stevenson had been concerned in a theft of his goods, the charge would be libelous of itself; and in that case no innuendo was necessary to help the meaning. It is not essential that a libel shall impute a crime in technical or even in precise terms. It is sufficient if such imputation be conveyed to the persons to whom the publication is made by hints and indirect modes of expression, having that meaning in their ordinary acceptation.
The jury found the defendant guilty. The defendant moved for a new trial, on the ground, first, of the admission of improper testimony, and, secondly, of error in the charge of the court, which motion was overruled. And then the defendant moved in arrest of judgment, which motion was likewise overruled by the court. And the judgment being pronounced, the defendant appealed.
The prosecutor, by an advertisement in a public newspaper, had forewarned all persons trespassing on his land, and particularly the defendant and his sons. The advertisement concluded thus: "Said White and boys entered his (Stevenson's) premises this morning, well armed with guns, no doubt with some evil (421) intention, either to do the subscriber some private injury or to injure his stock." The defendant a few days afterwards, through the same newspaper, answered the advertisement, and denied that he went to the prosecutor's house to do him or his stock any injury. "I went (said the defendant) for no other intention but to search for my stolen property, and his son John was with me all the time; on the 26th November, at night, I lost some property; the next morning I got item that it had gone to Silas S. Stevenson's; I immediately pursued and found my property in one of his houses; I made no further plunder, but immediately returned home." Does this, of itself, and without any averment to that effect in the advertisement, charge the prosecutor with stealing the property? We think it did not. As it stood upon the record, it contained no libelous matter. The indictment simply sets out the tenor of the advertisement, and does not aver that the defendant meant thereby to impute larceny to the prosecutor. Notwithstanding the defective allegation, the judge left it to the jury to say whether an interpretation was to be given to the publication as charged a larceny to Stevenson; and he told them, if they came to such a conclusion, then that portion of the publication amounted to a libel. We think that, as the indictment is framed, the import of the publication and its sense were to be judged of by the court, and that it was improper to leave it to the jury to find a meaning which was not charged upon the defendant in the indictment. If there had been an averment that the defendant intended, by this portion of the publication, to charge the prosecutor with stealing his property, then the remarks of the judge upon the evidence offered would have been proper. Rex v. Watson, 2 Term, 206. If a judge and jury, in any case, think that the publication is libelous, still, if on the record it appear not to be so, no judgment can be rendered. We must (422) understand from the case sent up to this Court that the finding of the jury and the judgment rendered in the Superior Court were confined solely to this part of the publication. That there are in other parts of it libelous matter as set forth in the indictment is certainly true; but whether this verdict and judgment related also to them we are left totally ignorant from the case sent up here. Out attention is restrained to one point; and as that is against the State, the judgment must be reversed and a venire de novo awarded. For what we know, the libelous matter, which is well charged in the indictment, may have been justified by the defendant, or disposed of in some other way. There must be a new trial. If, indeed, the publication, directly and in express terms, impute to one a crime, the character of the publication, as being libelous, sufficiently appears from the tenor of it, which is set forth in the indictment, and no further averment is requisite. In the one mode or the other the indictment must show that the person was held up to hatred, ridicule, and contempt. Now, this publication, by its words merely, does not impute larceny to the prosecutor, but rather the contrary; for the purport of it is that the prosecutor's own son attended the defendant in his search for the stolen goods on his father's premises, and that they were not found in the possession nor under the control of the prosecutor, but "in one of his houses," which turns out to have been true, as the articles were discovered in a house belonging to the prosecutor, and on his premises, but occupied at the time by a tenant. The defendant's publication in this part of it was in truth his defense against the charge of the prosecutor as to the defendant's ill motives for going to his premises, by a statement of his real purpose in going, namely, to find his stolen property, and not to accuse the prosecutor himself with being the thief. As this is the natural import of the defendant's language, and the indictment contained no averment of any particular and different intent, there was nothing to (423) leave to the jury on this point.
PER CURIAM. New trial.