#### DOCTOR C. HOWELL & WIFE vs. EVAN S. HOWELL.

In an action of slander, where it appears, that the defendant was drunk* when he uttered the words, this may go in mitigation of damages, as tending to rebut malice. But where it appears he repeated the charge, both when drunk and when sober, on public and private occasions, his being drunk at the particular time alleged, is no reason for abating the damages.

Appeal from the Superior Court of Law of Henderson County, at the Fall Term 1848, his Honor Judge Manly presiding.

This was an action of slander for words spoken of the female plaintiff, wife of the other plaintiff. The proof was, that the defendant spoke the words of the female plaintiff, as charged, on many occasions, public and private, sometimes when he was sober, most frequently when ho was excited by spirituous liquors. And the Court instructed the jury, that his intoxication was not a legal extenuation; and such damages, as they might think otherwise proper to give, ought not to be abated on that account. To this portion of the Court’s charge the defendant excepted, and, a verdict being found for the plaintiff, the defendant appealed from the judgment thereon.

J. W. Woodfin and Henry, for the plaintiffs.

Baxter, N. W. Woodfin & Gaither for the defendant.

Péarsok, J.

Under the circumstances, we think there was no error in the Court below. If one, in a passion, *85speaks slanderous words and does not repeat them after* wards, his being in a passion is a circumstance to mitigate the damages ; because as juries are allowed to give damages, not merely by way of compensation, but for the purpose of making an example, and punishing in proportion to the degree of malice, the fact of being in a passion and not repeating the words afterwards, ought to have a marked bearing upon the amount of the damages. Gilreath v. Allen. decided at this term. So, if one, being drunk, speaks slanderous words and does not repeat them, when sober, his being drunk is a circumstance tomiti* gate the damages, because it tends to rebut the presumption of “ malice,” and the words of a drunken man are not usually attended to, and, therefore, are not much calculated to injure. But when the slanderous words are spoken on many occasions, public and private, when the defendant is sober as well as when he is drunk, on some of the occasions, when the wmrds are spoken, instead of tending to rebut the idea of “ malice,” this tends to shew, that the defendant’s heart is boiling over w'ith malice, and cannot. in any point of view', be allowed as a reason for abating the damages, which the jury would otherwise think proper to give.

Per Curiam.

Judgment below affirmed.