Long v. Musgrove

STONE, J. The present was an action for slanderous words, alleged to have been uttered by appellee, of and concerning appellant. In the first and second counts, the alleged words import a charge of larceny of ballot boxes. The words charged in the third count do not, unaided, impute the commission of any indictable offense. Tuis count avers that by the utterance of the words charged, the defendant falsely and maliciously charged the plaintiff with larceny, and that thereby he, the defendant, intended to create in the minds of the persons who heard him, the impression that the plaintiff had aided in stealing the ballot boxes from the sheriff’s office, and that said words were so understood by the persons who heard him, and by many others, to whom they were told. The language of this count -which immediately precedes the words alleged to be slanderous, is as follows: “That on the night the ballot boxes were stolen from the sheriff’s office, he, the defendant,” [161] etc. We have stated the substance of all that is charged in the count, except the words supposed to be slanderous, and which, as we have said, on their face impute no crime, nor act of moral turpitude. There was a demurrer to this count, which the court sustained. Pleadings in actions of slander have been greatly simplified. When the words complained of import and impute a crime, then the complaint may be very simple and brief. But the slanderer does not always express himself in direct terms. If the words used are susceptible of two meanings, the one harmful and the other innocent, if they be ambiguous, or unmeaning in the absence of other stated facts, or if it be charged they are uttered in irony, then the pleader must set forth enough antecedent or attendant facts to raise the implication that the offensive charge was intended. Merely asserting that the utterer intended to charge a particular crime, is not enough, unless the unaided words import so much. Hence the use of what are called in the books inducement, or occasion, and the colloquum,. These give point and direction to what would otherwise seem innocuous. - Odeers on SI. & Lib. 118. In the count we are considering, there is no averment that ballot boxes had been stolen, or that they were reputed to have been stolen. Nor is there averment that the sheriff’s office was in the court-house. That is its usual place, but so important a factor in giving point to the circumstance, in itself innocent, of the plaintiff’s presence at the court house at 9 o’clock at night, should not be left to inference. Nor can we perceive any connection between the plaintiff’s presence at the Baptist church, at 12 or 1 o’clock that' night, and the supposed larceny of the ballot boxes. The demurrer to this count was rightly sustained. — Townsend on Slander, §§ 132 et seq.; 2 Addison on Torts, 974, note k ; Campbell v. Campbell, 54 Wis. 90. The charge excepted to is a fair definition of the crime of larceny.—Rountree v. The State, 58 Ala. 381 ; 2 Whar. Am. Cr. Law, §§ 1769 et seq. If it declared the rule strictly, when considered in connection with the facts, that was a subject for an explanatory charge, and presents no ground for reversal. In one aspect the charge was unduly favorable to the plaintiff. It impliedly c^st on'Musgrove, the defendant, the burden of showing the words spoken “ were not intended to convey, and did not convey to those who heard them, the meaning that Long stole the ballot boxes,” etc. The onus rested on the plaintiff to establish this affirmative feature of his case. Affirmed.