
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN. 1812.
    Dr. John L. N. E. W. Shecut v. Alexander M’Dowell.
    The defendant was charged with having uttered words against the plaintiff, which were in themselves slanderous: but when these words were taken together, and considered in relation to the subject matter, or occasion of speaking them, they were not judged to be actionable, although some persons present did not hear the explanations which accompanied their utterance.
    Motion for a new trial on the part of the defendant. Action for slander, tried before Judge Wilds, in Charleston.
    The declaration charged the defendant with speaking the following words to, and concerning the, plaintiff: “ You are a robber : you robbed me of my money, and I can prove it. . You, Shecut, are a cheat, and have cheated me out'of my property. Gentlemen,” (addressed to the by-standers,) “ he has stolen from me $300, and has them upon his shelves.” No special damage was charged. The evidence proved, substantially, the speaking of the words as charged, but that they were coupled with an explanation, shewing the defendant’s meaning, viz., that the plaintiff had overreached him in a money transaction, and had gotten possession of a bond due by him to the defendant, which he obtained confidentially. The words could not well be intended to mean more than a breach of trust.
    Judge Wilds, as the brief states, expressed doubts as to the authority of the English doctrine on the subject, being inapplicable, in this country. And although the witnesses examined, said they had heard the explanation, as well as the injurious expressions, yet others might have heard the injurious words without the explanation ; and if so, the injurious words would amount to slander.
    Verdict for plaintiff.
    Argued by Deayton for the defendant; and White for plaintiff.
    For the defendant, was cited 2 Esp. Dig. 498. 1 Campb. 48'. 3 Johns. 280.
    For the plaintiff, 5 Johns. 191. 3 Johns. 180.
   Beevaed, J.

My opinion in this case is, that the defendant is entitled to what he claims by the motion submitted; and my reasons for this opinion are these:

The words which are proved to have been spoken, when taken altogether, and considered in relation to the subject matter, or cause and occasion of speaking thenij appear not to be actionable; as they do not import a charge of felony, or any criminal eonduct for which the party charged could be prosecuted, and subjected to legal punishment. They only charge a breach of trust.

In the argument on this motion, it was stated, and not denied, that the judge who presided at the trial, in his charge to the jury, intimated a doubt, whether the doctrine of the law of England, on this point, ought to be recognized in this country; and further, that he suggested to the jury, that some persons present at the publication of the words, might not have heard all the words which wfere spoken on the occasion, but only such ^¡s were calculated to convey an imputation of felony; and if so, the words thus heard might be actionable. t

I am not prepared to say, that there may not happen cases in this country in which it might be proper to hold, that words, which if spoken in England, would not be actionable there, ought to be adjudged actionable here ; but in the present case, I am of opinion that the English law, on the point in question, is, and ought to be, the governing rule. I am, therefore, bound to say, that the observations of the judge to the jury on this head, were incorrect, and may have misled them.

It was still more incorrect to intimate, (as it seems from the statement presented to this court, which has not been objected to, that the judge, in his charge to the jury, did,) that words, not actionable in themselves, when fully heard, and perfectly understood, may, nevertheless, support an action for defamation, if they should be imperfectly heard, and not rightly understood. The same statement ascribes to the judge a still more unreasonable and extravagant idea, namely, that a jury are at liberty to presume that part of the words spoken, which might seem to impute a slanderous charge, might have been heard by some of the persons who were present, who might not have heard the additional or accompanying words, or expressions, which were uttered on the same occasion, and by which the otherwise seemingly offensive and injurious words were explained, and their true meaning disclosed; and that such presumption or conjecture will authorize a verdict against the speaker of innocent words, uttered with the most friendly intentions. This doctrine would make the right of action depend, not on what was said or intended, but on \vhat may be conjectured to have been misunderstood.

I incline to think, that the observations of the judge were not distinctly heard, or clearly understood. But if I am right in this conÍecture> st*^ there ought to be a new trial, as it is probable he was understood by the jury as he was by the counsel.

C11 May, 1813, the cause was ¿gain tried before Brevard, J., and a verdict givenfor the plaintiff.] — Éd.

The COURT granted a new trial.  