Taylor v. Casey

¶1delivered the opinion of the Court.

¶2. In the examination of this case, we have first to enquire Whether the words, as stated in the first and third counts of the declaration, are in themselves actionable ■? To shew that they are not, the Counsel for the plaintiff in Error have relied on the authority of cases where, from the words spoken, the imputation of perjury was attempted to be addue-ed ; and have contended that as the words “ he is forsworn ” “ he has taken a false oath,” and the like, will not support an action, unless from the colloquium and innuendo it appear that the charge was made with reference to testimony given on an oath lawfully administered in the course of judicial proceeding, and on a material matter, &c. So in the case before us, as the words do not of themselves, or by the proper 'effect of the innuendo, set out a charge of felonious homicide, they are not to beso understood. There is an obvious difference between these two classes of slanderous words. The legal idea óf perjury necessarily includes the several circumstances constituting the offence. The charge of being forsworn, or of having taken a false oath, unless 'connected by some necessary reference to the other circumstances constituting the offence, does not to common apprehension produce the conclusion that a perjury has befen committed ; nor-would it be the probable tendency of such a charge to subject the person against whom it was made to the danger of criminal prosecution. But every homicide is judicially, as well as to the common apprehension of mankind, deemed felonious unless the circumstances of justification Or excuse appear. By the verdict in the Record, it appears that the defendant publicly, falsely, and %ialioiously, said to the plaintiff, “you have killed my bre>. *262ther, and I will kill you. ' If these had been the only words spoken by the defendant to the plaintiff, and the testimony could afford nothing to authorize a more technical statement of felonious homicide, their tendency, to subject'him to the of prosecution for a crime, and to injure his reputa^ tion, may yet have been as certain as if they had charged the offence with all the formalities of an indictment.

¶3It is a principle too well settled by the uniform tenor of modern authorities, now to admit of doubt, that- in actions' of this nature words áre now considered by Courts, as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them. But even during the period of English jurisprudence, when -the rule prevailed that in actions for.defamation the words were to be understood in mitiori sensu, it seems to have been held that an action lies for saying to plaintiff “ thou ■hast killed j. S.for, although.the killing, may have been as. -an executioner or by accident, the words in their usual acceptation mean a felonious killing, (6 Bac. Ab. 234, Wilson’s Ed. 1 Roll. Ab. 72.) This se'ems to be a case in point, and the reasons assigned afford a conclusive answer to the main argument for the plaintiff in Error.' Indeed, all the. older authorities which I have had. an opportunity of consulting, shew words such as these here charged to have been held actionable. Nor in any of the later cases cited does it appear that the contrary doctrine has been held. Cro. Eliz. 823. Cro. Car. 277. Cro. Jac. 423—162. Ld. Raymond, 959. 1 Com. Dig. 250.

¶4In the cases of Coburn vs. Howard, and Perdue vs. Burnett, (a)the above-mentioned principles as to the construction of words were recognized. In the case Perdue vs. Burnett, this Court held that the words “ you have altered the marks of four .of my hogs,” having been ascertained by 'the.verdict to have been spoken falsely and maliciously, with intent to subject the plaintiff to the danger of legal punishment, were actionable without an averment of spedamage. We are unanimously of opinion that the judg-merit of the Circuit Court must be affirmed.