
    Russell vs Wilson.
    Appeal from the Montgomery Circuit.
    Case.
    
      Case 68.
    Case slated.
    To say that ‘Will-son helcIFoster’s horsewhilst Foster knocked the defendant off his horse, put M¡> hand in his pocket and said the damned old rascal had’ no money, and he would take his tobacco-for his trouble: The one held while the other skinned,’ is not actionable — importing the commission no felony-
    
      Slander. Words.
    
    
      June 14.
   Judge Beeck

delivered the opinion of the Court!

There is no material variance between the words proven upon the trial and as laid in the declaration ; but we are of opinion the words proven, or which the testimony conduced to prove, were insufficient to sustain the plaintiff’s action.

The testimony conduces to prove that the defendant made this declaration: that Wilson held Foster’s-horse whilst Foster knocked defendant off his horse, put his hand in his pocket, and said the damned old rascal had no money, and he would take his tobacco for his- trouble ; that one held while the other skinned. These words are substantially laid in the declaration, with an inuendo that the plaintiff ’and Foster assaulted with an intent to rob the defendant of his money, and finding no money, they picked his pockets and robbed him of his tobacco.

The words do not import an actual- robbery of either money or tobacco. The declaration that Foster said, finding no money, he would take his tobacco for his trouble, does not necessarily imply that he did actually take the tobacco. Foster might have made the remark as stated by the defendant, and still have left his tobacco' in his pocket. If the words then, do not import an actual robbery, are they actionable, as importing an attempt to-rob? We think not. An attempt to rob was not a felony at common law. The question then arises, whether the words as proven, present a case within our slatute, (2 Stat. Laws, 1281,) for the punishment of assaults, with intent to rob. The statute provides, “if any person or persons, with an offensive weapon or instrument, unlawfully and maliciously shall assault, or shall by menaces, or in or by any forcible or violent manner, demand any money, goods or chattels of, or from any other person or persons, with a felonious intent to rob or commit robbery upon such person or persons, such offender, his aiders, abettors, &c., shall undergo a confinement in the jail and penitentiary, &c.

Apperson for appellant- Peters for appellee.

The first clause makes-the offence consist of an unlawful or malicious assault with an offensive weapon or instrument with a felonious intent to rob. The offence in the second clause consists, by menaces, or in or by any forcible or violent manner, of a demand of any money, goods or chattels of or from any other person or persons, with a felonious intent to commit a robbery upon such person or persons. The words in this-case do not import an assault with an offensive weapon or instrument, nor do they import a demand as required to constitute the offence under the second clause. The words, if true, therefore, would not constitute an offence under the statute.

It follows that the Court below erred in not sustaining the motion for a nonsuit.

The instruction given to the jury, we think, was also erroneous. It was the province of the Court, and not the jury, to decide upon the import of the words, which the testimony conduced to prove.

The judgment is therefore reversed, and the cause remanded, that a new trial may be gianted, without the payment of costs.  