
    William Alfele v. Peter Wright.
    1. Upon the question whether slanderous words are actionable in themselves, as charging the plaintiff with crime, the general rule of the common law is, that where the charge, if true, would subject the plaintiff to an indictment for a- crime involving moral turpitude, or to an infamous punishment, the words are actionable per se; and otherwise not.
    2. One of two partners can not be guilty of burglary or larceny in respect to a house or goods of which the ownership and possession are in both partners. An entry of such house, and carrying away of such goods by one of the partners, would not subject him to a criminal prosecution, either at common law or by statute. Therefore, words charging a partner with such conduct are not actionable, without special damage.
    Error to tbe court of common pleas of Shelby county. Reserved in the district court.
    The plaintiff in error brought his action in the court below to recover for slanderous words alleged to have, been spoken of him by the defendant.
    The petition states that, on November 19, 1864, the plaintiff and defendant being partners in trade in a grocery store, in the village-of Sidney, their store was, in the night season of that day, burglariously broken open and entered, and a large amount of groceries, coffee, sugar, etc., the goods and chattels of the two partners, "Wright and Alfele, of the value of two hundred dollars, were feloniously stolen ^therefrom. That the defendant afterward, on December 3,1864, in a conversation with the plaintiff, in the presence and hearing of sundry persons, charged the plaintiff with a participation in the burglary and larceny. The slanderous words are set out, and were such as these: “A friend told me that you had a share in breaking into the store the other night, and I believe so,, too.” “ I ’ll be dammed if I do n’t think it’s so.” “I know it’s so.” “1 am sure of it.” “ I ’ll be dammed it it’s not so,” etc. The petition contains no allegation of special damages, but lays the general damages at ten thousand dollars, for which judgment is asked.
    The defendant demurred, on the ground that the petition does, not state facts sufficient to constitute a cause of action.
    This demurrer was sustained, and judgment entered for the defendant."
    To reverse this judgment for alleged error in sustaining the demurrer to the petition, the plaintiff filed his petition in error in the-district court, and the issue thus raised, was by that court reserved for decision here.
    
      James Murray, for plaintiff in error:
    1. The averments of the petition charge the defendant with a. crime — an indictable offense, involving moral turpitude. One partner may, under certain circumstances, be guilty of a larceny of the partnership property; and this, from the well-settled rule that one partner can not use or dispose of the partnership property to his own individual use or benefit, even by sale or transfer made in good faith. Jackson v. Holloway, 14 B. Monroe, 133; Leonard v. Winslow, 2 Gratt. 139; Williams v. Brinhall, 13 Gray, 462 ; Hotchin v. Kent, 8 Mich. 526 ; Boardman v. Adams, 5 Clarke, 228.
    Whether, if the charge as made was true, the plaintiff was or was not guilty of larceny, he was guilty of a burglary. The store was’ entered in the night season ; it was entered burglariously; it was entered with intent to steal, and personal property was in fact stolen.
    It matters not whether the property actually stolen was partnership property or not, the charge of burglary includes larceny. Breese v. The State, 12 Ohio St. 146.
    *In any ev.ent, it was a question for the jury and not for the court. Becket v. Sterrett, 4 Blackf. 499.
    2. The charge is one which, if it be true, involves moral turpitude ; which tends to degrade a man in the estimation of his fellowmen ; to exclude him from their society; to make him a by-word and reproach, for the finger of scorn to point at, and tends, materially, to injure him in his trade, occupation, or profession, and, as such, is actionable per se. Malone v. Stewart and wife, 15 Ohio, 320; Deal v. Holter, 6 Ohio St. 241; Brooks v. Coffin, 5 Johns. 189.
    The principle which ought to actuate partners in their transactions with each other is well stated in 1 Lindley on Partnership, 583-586.
    To deny the plaintiff legal redress against so vile a charge as that made against him by the defendant, is to deprive him of the law to vindicate his character and drive him .to the code of blood.
    o Thompson & Mathers, for defendant in error:
    1. The foundation of slander is, “that the charge, if true, will subject the accused to infamous punishment.” Seaton v. Cordray, Wright, 101; 1 Starkie, 19 ; Brooker v. Coffin, 5 Johns. 191; Hilliard on Torts, 278; Wilson v. Oliphant, Wright, 153; Wagoner v. Richmond, Ib. 173; 2 Johns. 10; 20 Johns. 344.
    2. Under the facts stated in the petition, the plaintiff could not be charged with larceny, or with.breaking and entering with intent to steal. Joint, tenants or tenants in common of a chattel, can; not be guilty of stealing such chattel from each other. 2 Russell on Cr. 86 et seq., and authorities there cited.
    One tenant in common of a storehouse, can not commit a. burglary by breaking and entering the same. 1 Russell on Cr. 817, 820 ; 2 Bishop’s Cr. Law, 91, 94; Am. Cr. Law, 524.
    It is not slander for one partner to charge another partner with having stolen the partnership money. Becket v. Sterrett, 4 Blackf. 501.
    3. If a charge of crime be made in regard to a transaction which does not amount to a crime, the defendant is liable only *for special damages. 4 Blackf. 501; 1 Hilliard on Torts, 261, 346; Wright v. Lindsay, 20 Ala. 428; Starkie on Slander, 85, and notes on pages 87, 88, 91, 93.
    No charge upon the plaintiff, however foul, will be actionable, without special damage, unless it be an offense punishable in a temporal court of criminal jurisdiction. 1 Starkie on Slander, 21, 29, 30, 87, 98; Van Ransselaer v. Dole, 1 Johns. Cas. 279; Barrett v. Jarvis, 1 Ohio, 83.
   Scott, J.

The question is, whether the words charged to have been spoken by the defendant in this case are actionable in themselves, without alleging special damages. They are not alleged to have been spoken in reference to the trade or profession of the plaintiff, and, if actionable, it must be because they impute criminality to the plaintiff. In regard to slander of this character, the general rule of the common law is, that in case the charge, if true, would subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words will be, in themselves, actionable, and otherwise not. 1 Hilliard on Torts, 245, sec. 1; Brooker v. Coffin, 5 Johns. 188; Watson v. Trask, 6 Ohio (per Wright, J.), 531; Dial v. Holter, 6 Ohio St. 228.

It is said by Starkie to be clearly established, that “ no charge upon the plaintiff, however foul, will be actionable, without special damage, unless it be of an offense punishable in a temporal court of criminal jurisdiction.” 1 Starkie on Slander 21.

As it is not jeopardy of punishment, but injury to reputation, which constitutes the ground of the action of slander, it is probable, though we have no common-law crimes in Ohio, that words importing a charge of great moral turpitude, and which at common law would subject the guilty party to infamous punishment, though not embraced in our criminal code, would be held actionable, perse, in this state.

The only innovation upon this common-law rule which has beenMtherto made in this state, is in regard to the slander of a female. Words charging a woman with a want of chastity, or which have a tendency to wound her feelings, bring *her into contempt, and prevent her from occupying such position in society as is her Tight as a woman, are actionable in themselves. Sexton v. Todd, Wright, 316; Malone v. Stewart, 15 Ohio, 319. But this exception has never been extended to the other sex, where the words were of a similar character. Wilson v. Robbins, Wright, 40. And we feel neither disposed nor authorized to extend the innovation.

Applying this rule to the present case, the words charged are clearly not actionable in themselves. For, though they charge the plaintiff with gross dishonesty, for which, if true, he would be liable to a civil action at the suit of the defendant, yet they do not import a charge of burglary, larceny, or any other crime made jmnishable as such, either by statute or at common law. The petition shows that the ownership and possession of the storehouse broken into, and of the goods abstracted, were in both the parties-to this action, as partners. An entering of the house, under these circumstances, by one of the partners, or by other persons with Ms permission, would not be burglary; nor could the taking and. carrying away of the goods by either partner, or by others with Ms consent and assistance, be a larceny.

The demurrer to' the petition was properly sustained, and the-judgment of the court below must be affirmed.

Hat, C. J., and White, Welch, and Brinkerhoee, JX, concurred-  