#### JAMES M. BURTON v. WILLIAM B. MARCH.

Where it was not proved that any theft had been committed at all, it was Held not to be evidence to be left to a jury, that the parly charged, was in a room alone with one asleep on a bod, in the day time, with money loosely in his vest pocket.

Where the instruction prayed for by counsel is substantially given, though not in the prescribed words of the request, there is no ground to except.

It is competent, in an action for slander, for the plaintiff to prove that after the time when the theft was alleged to have been committed, the defendant continued upon friendly terms with him.

Good character can be given in evidence, by the plaintiff, in an action of slander, as well to repel the evidence given to sustain the plea of justification, as to enhance the amount of damages; and that, whether the facts in issue are by the evidence left doubtful or not.

AotioN for SLANDER, tried before Bailey, J., at the last Spring Term, 1859, of Eo wan Superior Court. Pleas — Not guilty, and justification.

The plaintiff declared in five counts:

1st. That defendant had maliciously said of the plaintiff that he stole his, defendant’s, watch.

2nd. That he stole defendant’s money.

3rd. That he stole sixty dollars.

4th. The charge was of stealing twenty dollars.

5th. Of stealing generally.

The proof was, that defendant said he, plaintiff, stole sixty-five dollars of his money. The Court charged that this proof sustained the second count but not the third.

One witness, upon the plea of justification, testified that be went with the plaintiff to Hocksville, riding with him in a boggy ; that in a store, at that place, witness, in presence of the plaintiff, handed the defendant sixty-five dollars to be carried to the hank at Salisbury; that March went into the counting room of the store, and went to sleep ; that be, witness, and another person present, went up stairs for some shoes, and when he came back, the defendant was still asleep on the bed, and the plaintiff was in a hurry to start away, nnd did hurry the witness off; that after they had travelled *410some mile or two, plaintiff said lie would not be surprised if that money was stolen from March before night; witness asked him why he thought so; to which he replied that he had stuck the money loosely in his vest pocket and gone to sleep on the bed; besides, that he was careless and had his watch stolen from him.

Another witness stated that he kept the store spoken of by the preceding witness; that whilst March was on the bed, asleep, he saw the plaintiff standing near, and over him, leaning with bis hands each side of him, and speaking in an ordinary low tone of voice, as if trying to wake him.

The Court charged the jury that there was no evidence that the plaintiff stole the $05. Defendant excepted. There was evidence tending to sustain the plea of justification as to the first and fifth counts, and the defendant’s counsel asked the, Court to instruct the jury, that if they were satisfied, from the evidence, that the plaintiff had stolen the watch, or money in the several instances alleged by him, and to which he offered his proof, they should find for the defendant on his plea of justification as to the fifth count, and if they assessed damages on the other counts, it should be for the damages which they would assess for the character of a thief. On this point, the Court charged the jury that if the defendant, by his proofs, had satisfied them that the plaintiff did steal the watch, or the moneys, in the instances alleged by him, they could not give him damages on the first and fifth counts; that as the defend-anthadnotsustained his justification as to the charge of stealing the defendant’s mone3r, they were bound to find a verdict for some amount, if they believed the evidence, but what amount, was a question for them; that if the plaintiff was a man of good character, and above reproach in all respects, they were allowed by law to give exemplary damages, but if he was not a man of good character, they would not give so much. Defendant’s counsel excepted for the Court’s refusal to charge as requested.

3rd. The plaintiff offered evidence to show, that before the speaking of the words spoken, the defendant was on friendly *411and. intimate terms with him. Objected to on the part of the defendant, hut admitted by the Court. Exception.

4th. The Court permitted the plaintiff to prove his good character, both before and after the speaking of the words.— The defendant’s counsel asked the Court to instruct the jury that if the testimony as to the defendant’s justification were believed, the plaintiff’s good character would avail him nothing ; that it was only where there was a doubt left by the testimony as to felonious acts of the plaintiff, that such evidence was available.

The Court instructed the jury that the defendant’s good character should avail him on the question of damages. The defendant’s counsel excepted, because the Court omitted to charge the j my as to the effect of character on the question of the plaintiff’s guilt or innocence of the felonies imputed by the words.

Yerdict and judgment for the plaintiff. Appeal by the defendant.

Boy dm and Malean, for the plaintiff.

Foiole and Clement, for the defendant.

Battle, J.

The facts set forth in the defendant’s bill of exceptions, are not stated with sufficient perspicuity to enable us to be sure that we correctly understand the exceptions which he intended to make. So far as we can comprehend them, we will endeavor to notice them in the order in which they are presented.

1. The first exception is that the Court instructed the jury that there was no evidence that the plaintiff had stolen the sum of sixty-five dollars mentioned by some of the witnesses. The instruction was undoubtedly correct; for the obvious reason, that there was not the slightest testimony that that money had been stolen at all. If that fact had been proven, then the testimony relied on by the defendant for that purpose, would have had some tendency to fix the theft upon the plain*412tiff, but in the absence of such proof, it could not, possibly have any effect at all.

2. The instruction prayed for that, if the defendant had sustained his plea of justification on the first and fifth counts, though he had failed to sustain it on the others, yet the jury could assess for the plaintiff only such damages as were proper for one having the character of a thief, was, we think substantially given. The Court told the jury that if the plaintiff was a man of good character, and above reproach in all respects, they were allowed by the law to give exemplary damages ; but if he were not a man of good character, they would not give him so much. This was, in effect, telling the jury that if the defendant had succeeded in proving that the plaintiff was a thief, whereby his character was made bad, he was not entitled to the same measure of damages, as he would be, if his character were above reproach.

3. The third exception is clearly untenable. The fact upon which it was based, is very obscurely stated, but it must be understood that the testimony offered by the plaintiff to show that the defendant continued on friendly terms and intimate relations with him, was after the time when the theft was alleged to have been committed. It would be absurd to suppose that the testimony had reference to the time subsequent to that when the defendant made the charges. Thus understood, the evidence was clearly admissible, to show that the defendant did not then believe that the plaintiff was guilty of what lie afterwards imputed to him, as we can hardly suppose that he would have continued to associate on friendly terms with one whom he suspected to be a thief.

4. The fourth and last exception is also unfounded. When called upon to defend himself against the charge made against him, by the attempt of the defendant to support his plea of justification, the plaintiff is clearly entitled to avail himself of any kind of testimony which would be competent for his defense on a criminal prosecution for the same alleged offense. Among the facts which he may thus prove, is his good character, which he has a right to have submitted to, and consid*413ered by the jury, whether the case be upon the other testimony, a d'oubtful one, or not. State v. Henry, 5 Jones’ Rep. 65. In the case of Kincade v. Bradshaw, 8 Hawks’ Rep. 63, and again in Barfield v. Britt, 2 Jones’ Rep. 41, it was held that to establish a justification in an action of slander, the same cogency of proof is not necessary as would be required if the plaintiff were on his trial upon a criminal charge for the offense imputed to him by the words. If, then, less proof be required to fix the charge upon him under the defendant’s plea of justification than would be necessary on a criminal prosecution, surely, the- plaintiff ought not to be deprived of the right to use any kind of testimony in the one case, which would be undoubtedly admissible for him in the other.

"We have-thus examined all the alleged errors assigned by the defendant, and as we find that none of them can be sustained, we must direct the judgment to be affirmed.

Pee. CuRiam,. Judgment affirmed.