
    Cornelius Q. Sands vs. David Robison.
    While it is the duty of grand jurymen not to make what transpires in their jury room, the subject of comment and conversation out of it, and while in some cases it may subject them to a criminal prosecution, as accessories after the fact, if they do so while an offence is under an investigation before them ;
    ■ yet it seems'not to he contrary to the policy of the law, to allow disclosures by them of what has been testified to before them, when they are called upon as witnesses in court, to speak in relation thereto; but to permit it or not, is in the discretion of the court, according to the time and circumstances of each case.
    In an action of slander brought by one against ano’ther, who had given testimony before the grand jury, in relation to the charge which was the basis of the slander suit, it was held a proper exercise of discretion to permit the grand jurors to testify on the subject.
    Where a justice of the peace certifies before the grand jury, as to a criminal charge which he has heard brought against a person, and that person, upon the grand jury failing to find a bill, brings an action of slander against the justice, he will have to do more than prove the slanderous words; he must prove express malice to have actuated the justice, because the latter having a duty to perform to prosecute known or suspected offenders, he will be protected in it, and the occasion of his speaking the words will be primé facie excuse for them.
    And it will not be sufficient evidence of express malice, that the person once exacted of the justice payment of a debt the latter owed him, in specie.
    In error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge.
    At the September term, 1847, of the circuit court of Monroe county, David Robison sued Cornelius Q. Sands in case for slander. The declaration contained three counts; in all of which the slanderous words complained of are charged to have been uttered by defendant in the presence and hearing of William Ligón and others, and in the two first counts are as follows, viz:
    1. “ He [plaintiff] has a daughter who has'children ; nobody knows the father, but the general belief is that he [plaintiff] is the father.”
    2. “ David Robison’s daughter has children; no one knows the father, but it is believed he is himself; I hear the rumor every time I go into th§ neighborhood.”
    In the third count the same words in substance are set out as in the first, but are charged to be “ insulting and leading to violence,” &c., under the statute of 1822.
    Defendant pleaded the general issue; and at the October term, 1848, the parties went to trial, and the jury returned a verdict for plaintiff for $1000, for which judgment was rendered with costs.
    A bill of exceptions was sealed by the court, at the instance of the defendant, which discloses that, 6n the trial, the plaintiff introduced successively as witnesses, Needham Whitfield, C. P. Herndon and R. Dinkins, and proposed to prove by them respectively the uttering by defendant of the words complained of in the declaration ; but on preliminary examination by defendant, witnesses disclosed that the words of which they were about to testify, were spoken by defendant to them andv others as the grand jury of Monroe county, at the April term, 1847, of said court, as information to them as such grand jury, and while they were in session in their jury room during said court. Whereupon defendant’s counsel objected to the witnesses being permitted to testify; but the court overruled the objection, and suffered them to give evidence; to which defendant excepted.
    The witnesses, when sworn, testified in substance, that at the spring term, 1847, of the circuit court of Monroe county, (about 10th of May,) defendant appeared before the grand jury of the county in the jury room, and stated to them, “that it was rumored in the neighborhood that David Robison (the plaintiff) lived in adultery with his own daughter;” and referred them to plaintiff’s oldest daughter and son as witnesses; and the solicitor then attempted to summon some of Robison’s family as witnesses, but failed. Defendant further stated to the grand jury, “that he gave them this■ information as a justice of the peace of the county, and he thought it his duty as such justice of the peace to give them information of such rumor.”
    In addition, R. Dinkins stated, that he had never heard said rumor except from one Geo. Smith, until after defendant’s statement to the grand jury. It theft went like wild-fire. He heard many speak of it, and express astonishment that such a charge should be made against plaintiff. It created high excitement.
    On cross-examination, he said several hours before defendant reported this rumor to the grand jury, he (defendant) asked witness if he had heard the report himself; to which witness replied he had; he had heard Geo. Smith, defendant’s brother-in-law, speak of it. Plaintiff and defendant were once neighbors and friendly, he thought, till this report to the grand jury.
    Re-examined, he stated that plaintiff’s character as an honest, industrious man, is good; had known him nine years.
    
      Stephen Cocke, for plaintiff, testified that he had known him twenty years,' and regarded him as a hard working, honest, and industrious man.
    To the same effect testified Washington Hardy; and plaintiff here closed his proof.
    Defendant then introduced John Echolls, who testified to the rumor in plaintiff’s neighborhood; and that he (witness) had informed plaintiff of it; and that on plaintiff’s requesting him to disclose his author, he declined at the time, but afterwards told him it was one William West. Witness is uncertain, but thinks it was since commencement of this suit that he gave up his author. Plaintiff had said at first that if he knew who it was, he would blow his brains out. Witness’s information to plaintiff was before the report to the grand jury. Did not think the parties were very friendly, because defendant had at one time exacted gold or silver for a debt due by plaintiff. He had known plaintiff twenty years, and his character was good.
    Hudson Butler, for defence, stated, that before defendant gave his information to the grand jury as aforesaid, there was such a rumor in plaintiff’s neighborhood. Witness had heard the report frequently, and specified one time in particular when' it was talked of among a company of females, a midwife one of the number. It was only mentioned then as a suspicion. Plaintiff * and defendant were neighbors a long time, and friendly as far witness knew. He knew plaintiff better than he did defendant. Plaintiff’s, character was good.
    H. Anderson, another witness for defence, also testified to the fact of such a rumor in plaintiff’s neighborhood. This he heard from one William West first, but only as a rumor.
    S. H. Buckingham, another witness for defendant, proved the same fact. Was not certain he had heard the rumor before the time the information of it was given to the grand jury by defendant, but thinks he had; heard of it often afterwards.
    It was further proved by defendant, that at the time he gave this information to the grand jury he was an acting justice of the peace of Monroe county; but that he then, and for several years before, lived twenty miles off, in a different neighborhood and justice’s beat from plaintiffs, in which last there were at the time two acting justices.
    This was all the proof in the cause.
    The following charges to the jury were then asked by defendant, viz.
    1. That if the jury believe from the testimony that the slanderous words complained of were spoken to and before the grand jury of Monroe county, and while they were in session as such grand jury, as information to them, they must find for defendant.
    2. That if they believe from the proof, that the slanderous and insulting words complained of were spoken to and before the grand jury of the county of Monroe, at the April term, 1847, of the circuit court of said county, as a witness, and while they were in session as such grand jury, they must find for defendant.
    3. That if they believe from the proof, that the words complained of were spoken to and before the grand jury of Monroe county at the April term, 1847, of the circuit court of said county, and while defendant was before them giving information as a justice of the peace for said county, then they must find for defendant.
    4. That if they believe from the proof, that the words complained of were spoken by defendant to and before said grand jury, at said term of said court of Monroe county, and while defendant was before them giving information to them as such grand jury ; and that at the time he was a justice of said county: then they are bound to presume that such information was given by defendant as such justice of the peace; and they •must find for him.
    5. If they believe from the proof that the words complained ■of were spoken by defendant only to the said grand jury of said county, as such, in their jury room, and while they were in session at said term of said circuit court, as information to them as such grand jury, of a crime against the laws of the state, and that defendant at the time was a justice of the peace of said county, and gave his information as such; and at the same time referred the grand jury to other persons as witnesses proper to be summoned before them on the inquiry; then they must find for defendant.
    6.. [Defendant then asked the court to give the above 5th charge to the jury verbatim, with this addition, viz :] — “in the absence of proof of express malice on the part of defendant in giving such information to said grand jury.”
    All of which foregoing six charges were refused ; and defendant excepted..
    The court at defendant’s request then charged the jury,
    7. That if they believe, &c. [as in the 5th and 6th charges above,] then they must find for defendant, unless they also believe, from any other.facts and circumstances in'proof, that defendant was instigated by malice in giving such information.
    At request of plaintiffs counsel, the court then gave the two following charges, to which defendant at the time excepted, viz.
    1. That if defendant was subpoenaed to go before the grand jury, he must show the fact; and
    2. The jury are the judges of malice, from all the circumstances ; and if they believe that defendant improperly and maliciously uttered the words charged as spoken, whether before the grand jury or elsewhere, they must find for plaintiff.
    After the jury returned their verdict, defendant entered a motion for a new trial.
    At a subsequent day of the term this motion was heard and overruled; and defendant excepted, and sued' out this writ of error.
    
      Goodwin and Sale, for plaintiff in error,
    cited,
    1. As to the admissibility of the grand jurors as witnesses, 4 Bl. Comm. 126, note (f); 2 Russ. Cr. 616; 4 Greenl. Rep. 439; 2 Halsted, 347; 2 Chit. Cr. Law, 317; 2 Stark on Ev. 232, n. 1, ed. 1837;' Yin. Abr. 20, tit. Ev. H; l Greenl. Ev. §252; 2 Sel. N. P. 815; 3 Watts, 56; 1 Shepl. 82.
    2. As to liability of Sands, being a justice of the peace, Bradley v. Heath, 12 Pick. 163; H. & H. 676, sec. 57; lb. 188, sec. 26; Starkie on Slander, 174.
    
      3. The words were spoken in a judicial proceeding. Thorn y. Blanchard, 5 John. 508; Vanderzee v. McGregor, 12 Wend. 545 ; 8 Steph. N. P. 2565; 2 Stark. Ev. 468; Johnson v. Evans, 3 Esp. 32; 2 Stark. Ev. 462 ; 9 Ala. 266; Law v. Scott, 5 Har. & J. 438; 12 Pick. 163; 3 Wend. 291; McDougal v. Clar'idge, 1 Camp. 267; Herver v. Dowson, Buller’s N. P. 8; Steph. N. P. 2564; Wheat. Sel. N. P, 1269.
    
      Ligón, Lindsay and Copp, on same side,
    Cited Cutler v. Dixon, 4 Coke, 14; Lake v. King, 1 Saund. 120; Ashley v. Young, 2 Burr. 807; King v. Bullie, 1 Wm. Black. 386 ; Bull. N. P. 8; Thorn v. Blanchard, 5 John. 508; 12 Wend. 545; 4 Serg. & R. 424; 12 Pick. 163; State v. Freeman, 5 Conn. 348; Imlay v. Rogers, 2 Halst. 347; Greenl. Ev. § 252; McLellan v. Richardson, 1 Shep. 82.
    
      Davis, for defendant in error,
    Cited Thorn v. Blanchard, 5 John. R. 508, 522; Ring v. Wheeler, 7 Cow. R. 728, 730.
    
      S. Adams, on same side,
    Cited Hutch. Code, 801; Coffin v. Coffin, 4 Mass. R. 1; 4 Bl. Comm. 89, n. 18.
   Mr. Justice ThacheR

delivered the opinion of the court.

This is an action of slander, in which the jury found for Rob-ison, the plaintiff below, one thousand dollars damages.

The competency of certain grand jurors to testify to the uttering of the supposed slanderous words before them, while officiating as grand jurors, was objected to upon the trial.

In this state, no oath of secrecy is required from grand jurors, as to what transpires among them in the discharge of their office. The question then is whether, by the policy of the law, communications to them, &c. are to be deemed privileged.

It would certainly be a great breach of duty for a grand juror, while the inquest was in session, to disclose the business of that body, by means whereof persons accused and not yet arrested, might make their escape, or take other measures to defeat the course of public justice. Indeed, in a certain state of case, a grand juror might thereby render himself liable to a criminal charge as an accessory, after the fact, in the commission of a crime. So, as many charges are confided to that body against individuals, which, for want of sufficient proof, or from want of foundation in fact, do not mature to a presentment or indictment, common prudence and charity, and a regard for the peace of society, and innocent men’s reputations, imperatively should close the mouths of grand jurors, as to their proceedings, after the expiration of their session. It is the interest of all good citizens to observe this rule, in order to secure freedom of deliberation and opinion, which would be to a great extent impaired if the occurrences of a session were afterwards made the subject of comment and loose and malicious conversation. Indeed, thus a grand juror might well subject himself to an action of slander. But the policy of the law was never designed to injure or punish the innocent, or to obstruct the course of justice; nor can that rule be upheld, by which a grand jury room shall be converted into an occasion for the safe and irresponsible utterance of false and malicious slander against upright and honorable citizens. Huidekoper v. Cotton, 3 Watts, 56. Hence it will be seen that so much depends upon time and circumstances, that the competency of a grand juror to testifrr is peculiarly a matter of discretion with the court to discriminate as to it. In the present case we see no valid objection to the competency, since the subject matter of their evidence had been already disclosed, and it was for the good of both plaintiff and defendant that the merits of the affair should be fully exposed.

The principle by which the finding in this instance may be safely tested is laid down by Chief Justice Shaw, of Massachusetts, in Bradley v. Heath, 12 Pick. R. 163. He says, “ Where words, imputing misconduct to another, are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the discharge of that duty, or where they are spoken in good faith to those who have an interest in the communication, and a right to know and act upon the facts stated, no presumption of malice arises from the speaking of the words, and therefore no action can be maintained in such cases, without proof of express malice. If the occasion is used merely as a means of enabling the party uttering the slander to indulge his malice, and not in good faith to perform a duty or make a communication useful and beneficial to others, the occasion will furnish no excuse.” Bromage v. Prosser, 4 Barn. & Cress. 247; Starkie on Slander, 200.

The defendant below was a justice of the peace of the county, and he stated the charge against the plaintiff, as having repeat■edly come to him as a rumor. This he stated voluntarily to the grand jury. No prosecution ensued for the want of evidence, or other reasons which do not appear.

It is .the duty of every citizen, and more especially of justices of the peace, even without the statutes requiring them so to do, to prosecute, in every legal mode, persons who have within their knowledge been guilty of crimes or misdemeanors. The occasion, therefore, on which the words were spoken furnishes a prima facie excuse for their having been spoken. It fell, then, upon the plaintiff below to show that the occasion was only used as a colorable pretence, and to have established express malice in the defendant. The. only ground for proof of this, was that, on some previous occasion, the plaintiff had exacted specie from the defendant in the payment of a debt. The present record does not disclose enough, in our opinion, to justify the finding of the jury.

The judgment is reversed, and a new trial awarded.  