
    Taylor against Casey.
    
      December, 1824.
    
    After verdict, homicide generally, shaft be to sStain the ací tfon.
    THIS was an action on the casé fbf slanderous words.. The declaration contained four, counts. In the first, the words charged were, “you, damned rascal, have killed mv brother, and I will kill you.” In the second, “ you havc-murdered my brother,” In the. third, “ he has killed my brother.” And in the fourth, “ he has murdered my brother.” Each count containing the usual matter of inducement, colloquium, innuendo, &c. Plea, not guilty; verdict, and judgment for the plaintiff. The defendant brought his writ of Error to this Court, and assigned as Error — that in, the first and third counts in the declaration a good cause of action is not shewn, and there was a general verdict.
    
      II. G. Perry for plaintifF in Error.
    If there be a good' and a bad count in the declaration, and a verdict on all the-counts, the damages cannot' be applied to the good count. The Court below must render judgment on the finding of the Jury. In the assessment of damages, the Jury may have regarded.the words which were not'actionable as much as those which were. The Court could not conclude that the damages were assessed on the good count only, but was bound to presume to the contrary. The Circuit Court rendered a judgment against the plaintiff in Error, for a cause which, according to the law of the land, was not actionable.
    The words as charged in- the 1st and 3d .counts aré actionable. Every killing is not murder. One human being may sometimes be killed by another without crime, and even without the slightest departure from moral rectitude. “ He has killed my brother,” and “ he has murdered my brother,” are to every apprehension, charges, of very different ■ import.
    He -cited 1 Term R. 151. 2 Lord Raymond, 825. 1 Salk. 24. Willis’ Rep. 443. 2 Salk. 696. 8 Mod. 270. 8 ,Term R. 691. 5 Coke’s Rep. 108. 10 Coke, 131. 11 Coke, 45, 50. 3 Wilson R. Onslow vs. Horn. 8 John. 109. 1 Caine’s .Rep. 347. 2 Johnson’s Cases, 17. 1 Sellon/SOl. ’2 Tidd, 831.
    
      Gordon for defendant in Error.
    As to the principle that when there is a good and a bad count, and a general verdict •for damages, a rule has obtained in England which the. cases shew to have been without reason, and to have excited the .regret of the Courts which have afterwards acquiesced in it. Doug. 730. In the United States this rule has some‘times been acquiesced in, and at other times not, as in the Courts of Connecticut and- South Carolina. In Virginia it has been altered by Statute, and where it has prevailed it is an anomaly in jurisprudence. I contend that the Exception on principle would not have been good on general demurrer. If in the same count words actionable and words •not actionable had been charged, the declaration-must have been good. Willis’ R. 443. Where is the distinction between that case and this ? . The Jury in the one case, as much as in the other, are to be presumed to have considered the words not actionable in their assessment of damages. But the words in all the counts are in themselves actionable. Every killing of one human being by another is prima facie murder ; and it rests with the party charged to shew the circumstances of justification or extenuation. The rule, that words shall be taken in mitiori sensu, has long sinee been exploded. The decisions of this Court declare that it is not the law. Perdue vs. Burnett. Coburn vs. Harwood, 
      
       The verdict here shews that the words spoken with malice, and with intent to subject the plaintiff in the action to the pains and penalties provided by law against persons guilty of murder. By our Statute of jeofails, -•after verdict no defects are available but such as would have been good o’n general demurrer. Laws Ala. 454. On gé-neral demurrer, this objection would not have been good. j WilsoM; 252, 253. 2 Wilson, 321. 3 Saund. 279, n. 14.' 1 Saund. 286. 1 Hen. and Mun. 361. He also cited as to the several positions, Foster’s C. Law-, 255;. 4 Bl; Com. c. 14. 1 Com. D. 250, and references. 1 Hawk.-P. C. c. 20, s. 2. 12 John. 239. Cowper, 276. Peake’s Evidence, 346. 2 Wilson, 114. 7 Bac. Ab. 529. 6 John. 83, 9 East. 93. Kirby’s Rep. 12. 1 Wash: 150. 5 Bos. and P. 335. 2' John; 239. 1 Johnson’s Cases, 279.
    
      Thoringion on the same side.
    Iii support, of the posh tions taken by-Mr. Gordon, I will only add that from the principio which determines what words are in' themselves actionable, all words charging the commission of homicidé, must be SO unless it appear that in the conversation i'n which they were uttered they were so explained as .to lead tire hearers to the conclusion that.the killing, as charged by the words,- could not be a criminal óffencé.' Every charge of homicide tends to bring the party charged into danger, if not of punishment at least of prosecution. The declaration here avers that all the words charged were maliciously spoken, with intent to subject the plaintiff in the action to punishment for the crime of murder, and by their verdict the Jury have said that the whole declaration is true. How then from the Record can the Court now say that the words in either of the counts do not charge the plaintiff with crimé, and naturally tend to bring him into danger of prosecutioh for it. • '
    
      Clay in reply.
    As to the position taken by Mr. Perry, that in an action of this description, where there are good and bad counts, and entire damages, the authorities in the books are uniform ; and unless this Court should conclude that the established common law doctrine is not to govern in this State, this position must, I conceive, be sustained.
    We should probably lose nothing by admitting, that if the words prima facie impute crime, they are actionable. Db the words in the first and third counts, according to the sense in which the world at large understand them, impute the crime of murder ? To me it would seem that the hearers would generally understand by them that the killing was without felonious intent, justifiable or excusable, much more naturally than they could infer that it was murder. No conviction could be had on an indictment merely charging the act of killing another — malice or felonious intent must be biverred. Neither in the first or third counts does it appear by the innuendo, that the defendant in the action intended to impute to the plaintiff the crime of murder; nor if it did, could the innuendo add to, or extend the charge. The cases ‘of Coburn vs. Harwood-, and Holt vs. Coif eld, (6 Term, 691,) cited on the other side, prove this. As to the case relied from 12 Johnson’s Reports, 239, it shews that other words were proved than those charged in the declaration, and the ■decision of the Court there was on a hiotion for a new trial, and as appears to me has no application to this question. ’Gur Statute of jeofails cannot help the. defendant in Error ; for if the words stated in the first and third counts are not in themselves actionable, the title shewn by each of these counts is defective, and a verdict could nbt make it good. The authorities cited by Mr. Gordon prove that a general demurrer to either must have been sustained.
    
      
      
         ante, 188-93.
      
    
   Judge Minor

delivered the opinion of the Court.

. 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>. ther, 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.

It 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.

In the cases of Coburn vs. Howard, and Perdue vs. Burnett, 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.

Judge Gayle having been of Counsel, gave no opinion. 
      
      
         ante 93—238.
     