
    Robert Galloway vs. John P. Courtney.
    In slander for charging plaintiff with having broken open the house of A. B,, and robbing her of money, failure to give the Christian name of A. B. in the colloquium, though it may be good ground for special demurrer, is no ground for motion in arrest of judgment.
    The words themselves clearly imputing the crime of larceny, an averment in the declaration, that the defendant intended to charge the plaintiff with larceny, is not necessary.
    Defendant may show in mitigation of damages, that, before the words were spokep, what another had said in reference to the same offence as committed by plaintiff, had been communicated to him.
    BEFORE WITHERS, J., AT LEXINGTON, SPRING TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows: “Tbe action was slander: and tbe verdict was for tbe plaintiff for one thousand dollars. Tbe words used by tbe defendant and made tbe cause of action, imputed to tbe plaintiff tbe crime of breaking into tbe bouse of tbe defendant’s sister ( twice, and robbing ber of money.
    “As to tbe declaration, and tbe alleged defects therein, which are made tbe foundation of a motion in arrest of judgment, I can say nothing, tbe same not coming into question before me.
    “ A witness, introduced by defendant, said that soon after tbe bouse was entered tbe last time, and a robbery was said to have been committed, (which was tbe subject matter of this slander) be had talked to Evan Protbro about it, and beard something from him about tbe matter; all be knew about it was from him. Tbe defendant would have brought out from this witness what Protbro said, and that be (tbe witness) communicated tbe same to the defendant. It was objected to and overruled. But tbe utmost latitude was allowed to tbe defendant in putting in evidence, rumors and suspicions as to tbe plaintiff’s guilt in tbe matter of tbe house-breaking and robbery, botb tbe first and tbe last, and tbe sister of tbe defendant was beard, at large, upon tbe transaction on botb occasions, tbe investigation made by ber and defendant as to first robbery, (and it may be tbe last, I am not sure,) and tbe circumstances that pointed suspicion towards tbe plaintiff. It did and does yet appear to me, that sucb a course of evidence rendered it very immaterial wbetber tbe defendant beard wbat Protbro said or not, and among tbe various rumors and suspicions wbicb, according to tbe evidence, be did bear, it is not at all improbable wbat Protbro said was among tbem, if bis authority was not specifically quoted. He was not called as a witness.
    
      “ Tbe defendant makes no complaint of tbe charge to tbe jury upon law or evidence; it was scarcely, in any wise objectionable, in bis view, and so I do not refer to it.
    Tbe defendant appealed and now moved this Court, in arrest of judgment, and for a new trial, on tbe following grounds, to wit:
    In arrest of judgment.
    1. Because, tbe declaration is defective in this, that it does not contain, in tbe colloquium, tbe name of tbe person, whose bouse is alleged to have been robbed, tbe Christian name being omitted.
    2. Because, tbe declaration is defective in this, that after tbe statement of tbe supposed slanderous words, it contains no averment, that tbe defendant thereby intended to impute to, and charge tbe plaintiff with theft, robbery or any other crime.
    
      Eor a new trial.
    Because bis Honor, tbe presiding judge erred, in ruling that tbe defendant could not give in evidence, in mitigation of damages, that before tbe uttering of tbe supposed slanderous words, be bad beard reports coming from Evan Prothro and others, imputing to tbe plaintiff tbe same offence, wherewith be was charged by tbe defendant.
    
      Fair, Boozer, for appellant,
    cited on 1st and 2d grounds Stepb. on PL 302; Gaity vs. Field, 58 Eng. C. L. B. 428; 14 M. & W. 410; 15 M. & W. 277; 1 Stark, on Sland. 391, 392, n. 1; 1 Stark on Sland. 417; Sturginen vs. Taylor, 2 Brod. 481; Bul. N. P. 4, 8 ; 4 Wend. 320; 5 East, 234; 1 C. & P. 400; 28 Eng. C. L. B. 151; and on 3d ground, Hatton vs. Turnipseed, Mss.
    
      Meetze, Bauslcett, contra,
    cited 4 Strob. 40; 6 Bicb. 419 ; 2 Stat. 432.
   Tbe opinion of tbe Court was delivered by

MüNRO, J.

Exception is' taken to tbe declaration, in tbe defendant’s first ground in arrest of judgment, because tbe plaintiff has omitted to set out therein tbe Christian name of tbe party, whose bouse is alleged to have been broken open.

To this a sufficient answer will be found, in tbe ruling of the Court in tbe case of Simpson vs. Vaughn, 2 Strob. 316, where it was held, that although such omission might furnish good ground for a special demurrer, tbe defect is however waived by pleading tbe general issue.

' Tbe second ground is, that tbe alleged slanderous words set forth in tbe declaration, do not charge tbe plaintiff with tbe commission of a criminal offence.

It has long been settled, that in actions of slander words are to be construed by a court, and jury, in tbe same manner tbey were, or ought to have been understood, or construed by tbe person to whom tbey were spoken (2 N. & McC. 511) and in Morgan vs. Livingston, 2 Rich. 591, it was held, not to be necessary that tbe words should in terms charge^ a larceny. “ If,” says tbe Court, “ taking them altogether in their popular meaning, slicb is tbe necessary inference, then there is no doubt tbey are actionable.”

.In this case, however, we are spared tbe necessity of resorting to tbe popular meaning of tbe words, for if we accept tbe technical definition of larceny as given in tbe books, it would be difficult to select a form of words better adapted to convey tbe idea of that offence, than do those charged in tbe declaration to have been uttered by tbe defendant. Take for example tbe following, “ It was Eobert Galloway who broke into Ms (tbe defendant’s) sister’s bouse, and took tbe money.” And, again, “ It was tbe same one who broke tbe bouse before; it was be and no one else; and that be stole a rope about fifty feet long.”

It is clear then, that upon neither of tbe grounds in arrest of judgment, can tbe defendant’s motion prevail.

Tbe remaining ground is for a new trial, in ascribes error to tbe ruling on circuit, in excluding what a witness, introduced by tbe defendant, bad beard one Protbro say in relation to tbe subject matter of tbe slander, and which be, tbe witness, bad communicated to tbe defendant.

It has been settled by a series of decisions in our own courts, that what a party cannot plead in justification, be is permitted to give in evidence by way of mitigation. (í N. & McC. 268.) Under this rule, a defendant may give in evidence under the'general issue,

1st. Tbe plaintiff’s general character, without reference 'to tbe particular nature of tbe offence with which be is charged;

2. Pacts and circumstances, not amounting to actual proof of guilt, but going to create a suspicion;

8. Keports and rumors, wbicb may have been in circulation concerning tbe plaintiff, whether true or-false; and all other facts and circumstances which may have any relation to the specific slander, and which are calculated to show the defendant uttered the words charged innocently.

In the recent case of Hatton vs. Turnipseed, 11 Vol. Mss. p. 120, in answer to an objection taken to the reception of similar testimony to that which was offered in this case, the court said, “Hearsays there were, but they were statements made by witnesses of what they had heard, which either they had testified to, or circumstances showed had been communicated to the defendant.

“ The hearsays then, were only proofs of the reports spoken of by every body, and shown by the defendant to rebut the implication of malice.

“ The matter to be inquired into, was not the guilt of D. S., nor of Dr. H., but the motive of the defendant. Had he made or exaggerated a charge against the plaintiff, or had he told, what he had heard, what he believed, and what the person he talked to was not ignorant of?”

We are of opinion therefore, that the evidence offered by the defendant was competent, by way of mitigation, and should have been received.

The defendant’s motion in arrest of judgment on all the grounds is therefore dismissed — but his motion for a new trial must f)& granted, and it is so ordered.

O’Neall, and WhitNER, JJ., concurred.

Motion granted.  