
    
      C. M. Cregier vs. O. M. Bunton.
    
    In an action for slander, if the words, proved to have been used by the defendant, are susceptible of two meanings, one imputing a crime, and the other innocent, the latter is not to be adopted, and the other rejected, as a matter of course. In such a case, it must be left to the jury to decide in what sense the defendant used them.
    Defendant, speaking with a witness about the plaintiff asked, “ if he had heard the news about him; the witness said, he hoped it was not lying; the defendant said, worse than that; the witness said, he hoped it was not stealing ; the defendant said yes, and went on to say, the report was that he had killed a beef of John Clarke’s — that the reason he did so, was, that he had been to Charleston, and not having money to pay his stage fare back, he had pawned his watch for it to Clarke — and that as it was worth more than the stage fare, the plaintiff had killed the beef for compensation.” Held, that it was properly submitted to the jury to decide, whether the words imputed to the plaintiff a charge of cow stealing, and that their verdict for the plaintiff could not be disturbed.
    This case ordered to the Court of Errors, for a decision on the question, whether the Act of 1841, “ to extend the right of challenge to jurors,” is constitutional.
    
      Before O’Neall, J. at Colleton., Fall Term, 1845.
    This was an action of slander, for words spoken. The plaintiff, under the Act of Assembly of 1841, challenged a juror. The defendant’s counsel objected to the allowance of the challenge, on the ground that the Act was unconstitutional, and supported his objection by a well sustained argument from the Constitution of the United States, and of this State. His Honor thought there was much in the argument drawn from the 6th section of the 9th Article of the Constitution of this State ; but as the Act had been allowed in all cases by his brethren and himself, without objection, he thought it best to overrule the objection. The challenge was allowed. The words laid were, “ he had killed and stolen a beef, the property of Mr. Clarke or Mrs. A. B. Wilson, and the hide had been found,” with the proper colloquium and inuendoes to apply the words to the plaintiff.
    It appeared that the plaintiff was the overseer of Mrs. Wilson ; that a beef (cow or steer,) had been killed in the neighborhood, and the hide had been found where concealed ; at first it was thought to be the property of John Clarke — at last, however, it was ascertained to be the property of Mrs. Wilson. ' The defendant, the first day of April court, 1844, ' speaking with Mr. Forrester about the plaintiff, asked if he had heard the news about him; the witness said he hoped it was not lying ; the defendant said worse than that; the witness said he hoped it was not stealing; the defendant said yes — and went on to say the report was, that he had killed a beef of John Clarke’s ; that the reason he did so, was, that he had been to Charleston, and not having money to pay his stage fare back, he had pawned his watch for it to Clarke, and that as it was worth more than the stage fare, the plaintiff, Cregier, had killed the beef for compensation. The defendant said that Wilson had consulted with him about it, and he advised him to take up the negroes, and if he was satisfied after examining them, that then he must discharge Cregier; he said that the beef was killed in such a way that he, the plaintiff, must have seen it; he said, however, it was negro news. He told this witness that the story about Cre-gier’s pledging his watch for the stage fare, had been told to a negro of Col. Walter’s, by Mrs. Cregier. To Dr. Henderson, the same day, and at the same place, (Waiter-boro,’) the defendant spoke of the same matter. He asked him if he had heard of the beef-killing in the neighborhood. The witness said he had, for Zoller, the post master at the Blue House, had written on the margin of a newspaper sent to him, that a beef had been killed, and desired him to come down and assist in the investigation. Bunton said, it is our neighbor Cregier ; it was, at first, supposed to be a beef of John Clarke ; his 'cattle were examined and found to be all present. He, Bunton, said, Cregier had been to Charleston, and lacking money to pay his stage fare, pledged his watch ; and as his watch was worth more than the fare, and as he could not redeem it, he took a beef to make it up. The defendant then went on to tell the witness, that it was found to be the beef of Mrs. Wilson ; that the hide had been found at the Willow Dam, and was then in Wilson’s possession. He said it was negro news. The witness, on expressing some surprise that Cregier should have been guilty of such an act, was told by Bunton, an undutiful child makes a bad man. The witness stated that Bunton’s statement made an impression on his mind, that Cregier had stolen a beef. @n the second day of April court, meeting Col. Walter on the road, the defendant told him that the plaintiff had killed a beef belonging to Mrs. Wilson ; that he, (Cregier) had taken a gun, gone into the swamp and shot a beef, and sent some boys, (negro carpenters) to dress it; the hide, he said, had been found buried at the Willow Dam, and was in Wilson’s possession ; he said it was negro news, but Col. Walter said he stated it in such a way that he believed it. The plaintiff proved an excellent character.
    A motion was made for non-suit, on the grounds, 1st. 'That the words proved were not actionable. And 2d. That the words, as laid in the declaration, were not proved. His Honor thought the words proved by Mr. Forrester were a plain charge of stealing one of Clarke’s cattle for beef. The words were, he thought, substantially proved as laid.
    The case went to the jury, and they found for the plaintiff one hundred dollars damages.
    The defendant appealed, and now moved for a non-suit ■or new trial, on the grounds—
    1. Because the words, as proved, did not imply a criminal charge, and could not make the plaintiff liable to a prosecution.
    2. Because the words, as laid in the declaration, were •not sustained by any of the witnesses.
    3. Because the plaintiff, under the Act of 1841, challenged Matthew Hiott, one of the jurymen, and a new juryman was substituted in his place, and sat on the trial ; whereas, defendant contends that the Act of 1841 is a violation of the Constitution of the United States, and of the sixth section of article ninth of the Constitution of this State.
   Curia, per O’Neall, J.

The motion for non-suit has been argued in, and considered by, this court.

The second ground was conceded, by the counsel for the motion, to be unsustainable ; and that he was right in ■abandoning it, is plain upon comparing the words proved with those laid in the declaration.

The first ground is alone to be discussed. It may be ■conceded, if the words proved had alone made the charge of stealing one of Mrs. Wilson’s cattle, whose overseer the plaintiff was, that they could not, in legal contemplation, have made a charge of larceny or cow stealing; for the relation of confidence between them was such that the taking would have only been a breach of trust.

But the words uttered to Mr. Forrester were a plain charge of stealing one of Clarke’s cattle ; for when For-rester, to whom the defendant was speaking of the charge against the plaintiff, said he hoped it was not stealing, the defendant said yes, and then went on to say he had killed a beef of John Clarke’s. The plain meaning of these words is, he stole a beef of John Clarke’s. It is true, he went on to assign the reason why, it was supposed, he did it; as that he had pledged his watch for his stage fare to Clarke, and it being worth more, he took a beef to make it up. This statement did not shew that the offence was not cow stealing, for if every word of it had been true, the defendant would have been guilty of the criminal offence.

The rule is, <:if words are susceptible of two meanings, one imputing a crime, and the other innocent, the latter is not to be adopted, and the other rejected, as a matter of course. In such a case, it must be left to the jury to decide in what sense the defendant used them.” Davis vs. Johnston, 2 Bail. 579. In this case, that course was pursued, and after the jury have decided, we certainly cannot say they have given a wrong interpretation to words which, we think, fairly impute the charge of stealing one of Clarke’s cattle. The same principle is affirmed in Hughey vs. Hughey, (reported under the name of Hugley vs. Hugley) 2 Bail. 592. In that case, it was held that words charging the stealing of certain articles to the distributee of an estate, who afterwards became the administrator, might and did sustain an action of slander, inasmuch as they made a plain charge of theft, and it was not impossible that larceny could arise out of such a possession.

The rule by which words actionable on their face may, when applied to the facts to which they relate, be held not to be actionable, is stated in Pegram vs. Styron, 1 Bail. 597. It is there said, “ if words spoken, unexplained, would be actionable, but at the time they are spoken they are so explained as to shew they impute no legal crime, then they are not actionable.” This case, tried by that rule, is clearly maintainable — for in the words used to Forrester there is no explanation which shews that the taking was not, or could not be, fellonious. Taking the whole of the defendant’s statement to that witness, it will leave this conclusion : that the plaintiff, to repay himself for so much of his pledge as was more than his stage fare, stole one of Clarke’s cattle. This is as plain a charge of cow stealing as the words in Davis vs. Johnston, tell him he is riding a stolen horse, and has a stolen watch in his pocket,” were of horse stealing and larceny. They impute with much more certainty, a crime, than the words in Hughey vs. Hughey.

The words used to Dr. Henderson and Col. Walter stated the larceny to have been committed of one of the cattle belonging to Mrs. Wilson, for whom the plaintiff’was overseer, and which were, therefore, legally in his possession ; and it is very possible that under the rale stated in Pegram vs. Styron, they would not have supported the action. • But it is enough for the plaintiff, that in one publication the defendant made a criminal charge, without any such explanation as would render it harmless.

The motion to set aside the verdict, and enter a non-suit, is dismissed ; but the motion for a new trial makes the question, whether the Act of 1841, giving to parties, in civil cases, the right of challenging some of the jury, is not a violation of the 6th section of the 9th Article of the Constitution of this State. This court cannot, by law, decide that question ; it is reserved for the Court of Errors, to which court this case is ordered, so that the question may be heard, considered and adjudged.

Richardson, Evans, Wardlaw and Frost, JJ. concurred.  