
    Coleman Hollingsworth v. John L. Shaw.
    1. Words imputing a crime or offence of a purely military character, and cognizable only by a court-martial, are not actionable per se.
    
    2. Hence, an action of slander cannot be maintained for calling the plain tiff a deserter, without averment and proof of special damage.
    
      Error to the court of common pleas of Morrow county. Reserved in the district court.
    The case is sufficiently stated in the opinion of the court.
    
      U. 8. Prophet for plaintiff in error:
    1. To call a soldier a deserter, as set forth in plaintiff’s petition, is charging him with an infamous crime, which, if true, would subject him to infamous punishment. -
    2. It tends to take away his good name, and to exclude him from the society of good people.
    3. It tends to a breach of the peace.
    All or either of these consequences being the natural and inevitable result of the charge, it is actionable, as is clearly established by the law. Seely v. Blair, Wright's Rep. 308; Starkie on Slander, pp. 15, 16, 17, 20; Walmesley v. Runel, 6 Mod. 200; Ex parte Duke of Marlborough, 5 Queen's Bench Rep. 955; Poe v. Grever, 3 Sneed (Tenn.), 664; Stewart v. Howe, 17 Ill. 71; Symonds v. Carter, 32 N. H. 458; Williams v. Holdredge, 22 Barb. 336; Rodebaugh v. Hollingsworth, 6 Ind. 339; Montgomery v. Deeley, 3 Wis. 709; Van Aukin v. Westfield, 14 Johns. 233; 2 Dallas, 60; Watson v. Trask, 6 Ohio (234), 531; Malone v. Stewart, 15 Ohio, 320.
    
      Bertrand Andrews .and Disney Rogers for defendant in error:
    To maintain an action of slander, the plaintiff must be able to allege in his petition the speaking of words that impute to him a crime punishable by our courts of criminal jurisdiction, or to allege special damage to him in his business, trade, or profession. Starkie on Slander, p. 40; Gibbs v. Dewey, 5 Cowen, 503; Goodwin v. Walcott, 3 Cowen, 231; S. C. 5 Cowen, 714; Walker v. Winn, 8 Mass. 248; Dodd v. Henry, 9 Mass. 262; Frisbie v. Fowler, 2 Conn. 707; 2 Bouv. Law Dic. 528.
    Charging a man with being a deserter is not slander. Charging a person with the commission of a crime is-not slander, unless the crime charged be such that if the person be guilty he would be liable to be indicted and punished by the criminal courts. To charge a man with being a deserter is charging him with having done an act for which a military court alone has the power to try and inflict punishment, and over which our criminal courts have no jurisdiction whatever.
   Scott, J.

The plaintiff brought an action of slander against the defendant in the court below. The petition states that the plaintiff enlisted, and served as a private soldier in the 96th Regiment Ohio Volunteers, from August 8th, 1862, till March 7th, 1865, when he was honorably discharged. That the defendant, on the 19th of March, 1866, in a ■ discourse which he then had with and concerning the plaintiff, in the hearing of divers persons, falsely and maliciously spoke and published of and concerning the plaintiff, the false, scandalous, and defamatory words following: “ You ” (meaning said plaintiff) “ are a deserter; ” meaning that plaintiff had deserted from the army of the United States. The petition alleges no special damages: and upon demurrer thereto judgment was rendered for the defendant; and the only question made here is whether the words' chai’ged are actionable per se.

The rule as laid down by Starkie is, that “ no charge upon the plaintiff, however foul, will be actionable, without special damage, unless it be of an offence punishable in a temporal court of criminal jurisdiction.” 1 Starkie on Slander, 21. The rule has been otherwise stated thus, that “ words, to be actionable, must either have produced a temporal loss to the plaintiff in special damage sustained, or they must convey a charge of some act criminal in itself, and indictable as such, and subjecting the party to an infamous, more especially a corporal, punishment; or some indictable offence involving moral turpitude.” 1 Hilliard on Torts, 239; Brooker v. Coffin, 5 Johns. R. 188; Young v. Miller, 3 Hill, 21; 2 E. D. Smith, 388; Dial v. Holter, 6 Ohio St. 228; Turner v. Ogden, 2 Salk. 696; Van Ness v. Hamilton, 19 Johns. 367; McCuen ads. Ludlum, 2 Harrison's (N. J.) R. 12; Birch v. Benton, 26 Missouri, 153.

These authorities, and the general current of decisions, warrant us in saying that to render words actionable j?er se, on the ground that they impute criminality to the plaintiff, they must, 1st, be such as charge him with an indictable offence; and, 2d, the offence charged must involve a high degree of moral turpitude, or subject the offender to infamous punishment.

In the case before us, the words charged are not such as would, if true, render the plaintiff liable to indictment. The charge made is cognizable only by a court in which indictments and trial by jury are unknown; and in which punishments are graduated rather with reference to the exigencies of the service, than to the intrinsic turpitude of the offence.

Counsel have referred us to no case, and we are not aware of any, in which a charge of a crime or misdemeanor of a purely military character, and cognizable only by a court-martial, has been held actionable without special damage.

We hold that the demurrer to plaintiff’s petition was properly sustained by the court below, and its judgment is therefore affirmed.

Brinkerhoff, C.J., and Welch, White, and Day, JJ., concurred.  