THE STATE vs. JAMES S. WHITE.
In an indictment for a libel, the indictment must set forth matter on its face libellous, in which ease the Court is to judge whether it be so or not; or it must aver that the matter charged, though not on its face libellous, was intended in fact to be so, and then the question is to be submitted to a jury.
Appeal from the Superior Court of Law of Craven County, at the Spring Term, 1846, his Honor Judge Manly presiding.
The defendant was indicted in the following words, viz: — ■
State of North Carolina, ) Superior Court of Law, Spring Craven County. ) Term, 1845.
The jurors for the State, upon their oath, present, that James S. White, late of the County of Craven and State of North Carolina, on the seventh day of December, in the year of our Lord one thousand eight hundred and forty-four, with force and arms, at and in the County aforesaid, maliciously and falsely, intending to defame one Silas S. Stephenson and to bring him into hatred and contempt among the citizens of this State, did .then and there a certain false, scandalous and libellous writing, of and against him the said Silas S. Stevenson, falsely and maliciously, frame and write and make and then and there did cause to be published in the form of" an advertisement, the substance of which- said writing is as follows, to-wit:
NOTICE.. — I have discovered in the public paper that Silas S. Stevenson says, that I went to his house for some evil intention, to do him some private injury or his stock. He is a base liar and scoundrel. I went for no other intention, but to search for my stolen property, and his son John was with me all the time. On the 26th of November, at night, I lost some property. The next morning I got item, that it was gone to Silas S. Stephenson’s. I immediately pursued and found my property in one of his houses. I made no further plunder but immediately returned home. The villain (meaning the said *419Silas S. Stevenson) forgot to say any thing about John Dunn’s pocket-book. He forgot to tell the people that he is a murderer and forsworn and is beneath the notice of a gentleman.
JAMES S. WHITE.
December 7th, 1844. 76 — 77pd
and that the said James S. White, with an intention to scandalize the said Silas S. Stevenson and to bring him into contempt and disgrace, the said false, scandalous, malicious and libellous'writing, as aforesaid, framed and written and made, afterwards, to-wit, on the said seventh day of December and on divers other days and times between said day and the taking of this inquisition, in the year aforesaid and in the county aforesaid, to divers good citizens of this State then and there being present, falsely, maliciously, and scandalously, did publish, to the great scandal, infamy and disgrace of the said Silas S. Stevenson-and against the peace and dignity of the State.”
The defendant offered in evidence the publication contained in a newspaper published in the town of Newbern in which the alleged libel appeared, signed by the prose* cutor, and admitted by the State to have been published by the prosecutor, and which is the same referred to in the alleged libel, of which the following is a true copy 'viz: — •
“ CAUTION.
“ The Subscriber hereby forewarns all persons from trespassing on any part of his land in any way whatever, as he is determined to put the law in force against any person who may be guilty: — and particularly he hereby forwarns James S. White and boys from hunting with guns, or entering, upon any pre-tence whatever, inside his inclosed land. Said White and boys entered his premises this morning, well armed with guns, no doubt with some evil intention, either to do the Subscriber some private injury or to injure his stock. Therefore he forwarns him and boys, under the severest penalty of the law, from entering any part of his enclosed land. He hopes James S. White and boys will avail themselves of this notice, for if a trespass on his enclosed land should be proved on them or either of them, the law will forthwith be put in force against them. ( SILAS S. STEVENSON.
November 24th, 1844.
*420Upon that part of the libellous publication, beginning “ on the 26th of November,” and terminating “ but im-diately returned home,” the defendant introduced his son, who proved that his father had lost some coleworts, and that he traced them to a place occupied by a tenant of Stevenson’s, and found some of the greens in the houses ; and the defendant’s counsel urged that the proof amounted to a j ustification of that part of the libel.
In charging the jury upon this part of the case, the Court submitted the words in question, and told them to consider them, in connection with ike whole publication, and, if the meaning conveyed thereby,- according to the usual and most obvious interpretation, was, that Stevenson had been concerned in a theft of his goods, the charge would be libellous of itself; and in that case, no innuendo was necessary to help the meaning. It is not essential, that a libel shall impute a crime in technical or even in precise terms. It is sufficient, if such imputation be conveyed to the persons to whom the publication is made, by hints and indirect modes of expression, having that meaning in their ordinar}1- acceptation.
The jury found the defendant guilty. The defendant moved for a new trial, on the ground, first, of the admission of improper testimony, and secondly, of error in the charge of the Court; which motion was over-ruled. And then the defendant moved in arrest of judgment, which motion was likewise over-ruled by the Court. And the judgment being pronounced, the defendant appealed.
Attorney General, for the State.
No counsel for the defendant.
Daniel, J.
The prosecutor, by an advertisement in a public newspaper, had forewarned all persons trespassing on his land, and particularly the defendant and his sons. The advertisement concluded thus: “ Said White and *421boys entered his (Stevenson’s) premises this morning, well armed with guns, no doubt with some evil intention, either to do the subscriber some private injury, or to injure his stock.” The defendant, a few days after-wards, through the same newspaper, answered the advertisement, and denied that he went to the prosecutor's house to do him or his stock any injury. “I went (said the defendant,) for no other intention but to search for my stolen property, and his son John was with me all the time: on the 26th November at night, I lost some property ; the next morning I got item that it had gone to Silas S. Stevenson’s ; I immediately pursued and found my property in one of his houses; I made no further plunder, but immediately returned home.” Does this, of itself, and without any averment to that effect in the advertisement, charge the prosecutor with stealing the property? We think it did not. As it stood upon the record, it contained no libellous matter. The indictment simply sets out the tenor of the advertisement, and does not aver that the defendant meant thereby to impute larceny to the prosecutor. Notwithstanding the defective allegation, the Judge left it to the jury to say, whether such an interpretation was to be given to the publication, as charged a larceny to Stevenson ; and he told them, if they came to such a conclusion, then that portion of the publication amounted to a libel. We think that, as the indictment is framed, the import of the publication and its sense were to be judged of by the Court; and that it was improper to leave it to the jury to find-a meaning, which was not charged upon the defendant in the indictment. If there had been an averment, that the defendant intended, by this portion of the publication, to charge the prosecutor with stealing his property, then the remarks of the Judge upon the evidence offered would have been proper. Rex v. Watson, 2 T. R. 20G. If a Judge and jury, in any case, think that the publica tion is libellous; still, if on the record it appear not to *422be so, no judgment can be rendered. We must understand, from the case sent up to this Court, that the finding of the jury and the judgment rendered in the Superior Court, were confined solely to this part of the publication. That there are, in other parts of it, libellous matter, as set forth in the indictment, is certainly true ; but whether this verdict and judgment related also to them, we are left totally ignorant from the case sent up here. Our attention is restrained to one point; and as that is against the State, the judgment must be reversed and a “ venire de novo” awarded. For what we know, the libellous matter, which is well charged in the indictment, may have been justified by the defendant, or disposed of in some other way. There must be a new trial.. If indeed the publication, directly and in express terms, impute to one a crime, the character of the publication, as being libellous, sufficiently appears from the tenor of it, which is set forth in the indictment, and no further averment is requisite. In the one mode or the other, the indictment must shew that the person was held up to hatred, ridicule and contempt. Now, this publication, by its words merely, does not impute larceny to the prosecutor, but rather the contrary ; for the purport of it is, that the prosecutor’s own son attended the defendant in his search for the stolen goods on his father’s premises, and that they were not found in the possession nor under the control of the prosecutor, but “ in one of his houses” ; which turns out to have been true, as the articles were discovered in a house belonging to the prosecutor, and on his premises, but occupied at the time by a tenant. The defendant’s publication, in this part of it, was in truth his defence against the charge of the prosecutor; as to the defendant’s ill motives for going to his premises, by a statement of his real purpose in going, namely, to find his stolen property, and not to accuse the prosecutor himself with being the thief. As this is the natural import of the defendant’s language, and'the indictment *423contained no averment of any particular anj different intent, there was nothing to leave to the jury on this point.
Pek Curiam. Ordered to be certified accordingly.