{
  "id": 2088520,
  "name": "DANIEL KING v. DOCTOR H. WHITLEY",
  "name_abbreviation": "King v. Whitley",
  "decision_date": "1860-06",
  "docket_number": "",
  "first_page": "529",
  "last_page": "533",
  "citations": [
    {
      "type": "nominative",
      "cite": "7 Jones 529"
    },
    {
      "type": "official",
      "cite": "52 N.C. 529"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "1 Dev. Rep. 271",
      "category": "reporters:state",
      "reporter": "Dev. Rep.",
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 481,
    "char_count": 8799,
    "ocr_confidence": 0.398,
    "pagerank": {
      "raw": 1.2240919645422112e-07,
      "percentile": 0.6011130378643696
    },
    "sha256": "b28e89efabdbc27788f17d4f97f723d796273344f72555a5f44d6d6289790248",
    "simhash": "1:2e033360f293ead8",
    "word_count": 1550
  },
  "last_updated": "2023-07-14T15:16:19.129964+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "DANIEL KING v. DOCTOR H. WHITLEY."
    ],
    "opinions": [
      {
        "text": "Battle, J.\nOne of the questions upon which the counsel for the defendant, have mainly relied in the argument before this Court, is not so clearly and distinctly stated in the bill of exceptions, as it ought to be, but enough appears to show that it was raised on the trial; and for that reason the defendant is entitled to the benefit of it, if it be in his favor.\nUpon the issue formed by the plea of the general issue, it was, of course, incumbent upon the plaintiff to prove that the words spoken were the same as he had charged in one or more of the counts of his declaration. The testimony of his witnesses, if believed, certainly sustained his allegations, but the words, as sworn to by the witnesses for the defendant, were spoken of the plaintiff interrogatively, instead of affirmatively. His Honor, however, instructed the jury, that if they believed that the \u201c defendant intended to charge, and did charge, the plaintiff with swearing to a lie in the case tried in court, it would support\u201d the declaration. Neither of the counts averred that the words were spoken in an interrogative form, and as the defendant had the right to have the credibility of the statement made by his witnesses, submitted to and passed upon by the jnry, the effect of his Honor\u2019s instructions was, that it made no difference whether the words were spoken affirmatively or interrogatively, provided they were intended to import, and did import, a charge of perjury. This brings up for consideration an important enquiry, whether the words spoken must be proved precisely as laid ; or whether pioof of the substance of them will be sufficient. \u201cIt was formerly holden (says Mr. Justice Buffer in his Nisi Prius, p. 5,) that the plaintiff must prove the words precisely as -laid; but that strictness is now laid aside, and it is sufficient for the plaintiff to prove the substance of them.\u201d This exposition of the rule, leaves it very indefinite, and in the application of it to the various cases which have come before the courts for adjudication, it will be seen that there has been a very unsatisfactory fluctuation of opinion. In some cases an apparently slight variation has been held to be fatal. Thus \u25a0in Walters v. Mace, 2 Barn, and Ald. 756, (4 E. C. L. Rep. 734,) the declaration charged that the defendant said of the plaintiff, \u201c This is my umbrella, and he stole it from my back \u2022 -door.\u201d The testimony was that the defendant said, \u201c it is my umbrella, and he stole it from my back door.\u201d The variance was held fatal, because the words, charged in the declaration, \u25a0applied to a particular umbrella, which was present, and the words, proved, applied to an umbrella which was absent. And yet, the words, \u201c it is my umbrella,\u201d may be spoken of \u25a0a particular umbrella then present. So, the evidence of words spoken in the second person, will not support a count alleging them to have been spoken in the third person; Avarillo v. Rogers, Buller\u2019s N. P. 5. So, in an action for the defamation of the plaintiff\u2019s wife, the words alleged in the declaration were the plaintiff\u2019s \u201c wife is a great thief and ought to have been transported seven years agothe words proved, were, \u201c she is a bad one, and ought to have been transported seven years agoit was held that the words proved did not support the declaration; Hancock v. Winter, 7 Taun. 205, (2 E. C. L. Eep. 7l). Again, in Barnes v. Halloway, 8 Term. Rep, 150, words laid affirmatively, were proved to have been spoken interrogatively, and this variance was held to be fatal. Tet, it is clear, that an interrogation may imply an affirmation, and may be so understood by the hearers. The Court said, that whatever the parties may mean, the words must be proved as they, are laid. There is \u201c a manifest distinction between the same idea conveyed by words spoken affirmatively, and put interrogatively.\u201d\nThere are many cases reported in the books, where varia- ' tions between the words charged, and those proved, were decided to be immaterial. Thus, in Orpwood v. Parks, 4 Bing. 261, (13 E. G. 1. Rep. 424) it was held that the words \u201c Vare hawk there, mind what you are about,\u201d would sustain a declaration alleging the words spokento have been \u201c Vare hawk,, you must take care of yourself there; mind what you are about.\u201d So, \u201c I will do my best to transport him, as he has been working for me some time, and has been robbing me all the while,\u201d will be supported by proof of the words, \u201c he has worked for me some time and has been continually robbing me;\u201d Doncaster v. Hewson, 2 Man. and Ry. 176, (17 E. C. L. Rep. 297.) Again, \u201cyou stole one of my sheep,\u201d will be maintained by evidence, \u201c you stole my sheep and killed it Robinson v. Willis, 2 Star. Rep. 194, (3 E. C. L. Rep. 310). From these instances, it is manifestly difficult to say what is to be regarded as substantial proof of the words charged; and it is evident that Chief Justice Marshall, after an able review of many of the cases, of both verbal and written slander, was fully justified in remarking- that \u201c the person who looks into this subject, will be surprised at finding how very unsatisfactory the cases are;\u201d see Whitaker v. Freeman, reported in an appendix to 1 Dev. Rep. 271. (The remark quoted will be found on page 288.) In this apparent uncertainty as to what is and what is not, to be deemed a fatal variance between the words charged and the words proved to have been spoken,, we do not feel at liberty to set at naught the authority of a case adjudged by an able court and followed by all the text writers on the subject of slander; Barnes v. Holloway, cited from 8: Term Rep. 150, seems to have settled the rule, that words charged to have been spoken affirmatively, will not be supported by proof of words spoken interrogatively. Such were the words- as testified to- by the defendant\u2019s witnesses, and his Honor committed an error in not per\u2022snitting the jury to decide whether that was the form of expression used by the defendant, instead of that which was sworn to by the plaintiff\u2019s witnesses. For this error, the judgment must be reversed, and a vmvre de novo awarded. This result makes it unnecessary to notice the other points made in the cause, particularly as they will not probably be raised on the next trial.\n\u2022Per -Curiam,\nJudgment reversed.",
        "type": "majority",
        "author": "Battle, J. \u2022Per -Curiam,"
      }
    ],
    "attorneys": [
      "Rogers, Miller and Saimders, for plaintiff.",
      "A. M. Lewis and B. F, Moore\u00a1 for defendant."
    ],
    "corrections": "",
    "head_matter": "DANIEL KING v. DOCTOR H. WHITLEY.\nA declaration in an action for slander, charging the slanderous words as having been spoken affirmatively, will not be supported by proof, that the words were spoken interrogatively.\nThis was an action on the case for slanderous words, tried before Saunders, J., at Spring Term, 1860, of Johnston,. Superior Court.\nThe declaration filed in this case, charged in the first count, that defendant said at a public gathering at Boon Hill, on the first Thursday in August, 1857, in the presence and hearing of many persons, as follows, viz : \u201c He (meaning the plaintiff) is the man who swore to lies against us,\u201d meaning himself, Haywood Ramis and others, who had been indicted in the County Court of Johnston a short time before and tried, and in which case plaintiff was sworn and ex\u00e1mined as a witness. The second count charges that, at the same time and place, defendant said, \u201c he is the damned rascal who swore to damned lies against us.\u201d The third, that he said, \u201che is the rascal who swore damned lies against us. The fourth,. \u201c he is the one who swore to a lie,\u201d and the fifth, \u201c you (meaning plaintiff) swore to a lie at last court.\u201d\nOne witness testified that he went with King, the plaintiff, to the election at Boon Hill, August, 1857; that on reaching the crowd, defendant said, \u201c that is the man, or fellow, who swore to a lie against us,\u201d to which Ramis replied, yes, a damned lie, and we will have his ears. The witness knew that the plaintiff, Bang, had been a witness against Whitley and Ramis at court, and supposed he alluded to that. Other witnesses were examined by the plaintiff, who testified to the same facts.\ns The record of the County Court, at August Term-, 1857, was-produced, the evidence from which, appeared (here had been-a trial of an indictment against Whitley and Ramis, and that plaintiff had been examined as a witness.\nDefendant then offered evidence of the words.. The witness said, the expression was, by way of enquiry, addressed to one Massey \u2014 King standing by \u2014 \u201c Is that not the fellow who swore to alie against us ?\u201d Massey replied it was. Other witnesses testified substantially to the same facts. The Court instructed the jury, \u201c that if the defendant intended to charge, and did charge, plaintiff with swearing to a lie, in the case tried in court, it would support the charge.\u201d Defendant excepted.\nYerdict for plaintiff. Appeal by the defendant.\nRogers, Miller and Saimders, for plaintiff.\nA. M. Lewis and B. F, Moore\u00a1 for defendant."
  },
  "file_name": "0529-01",
  "first_page_order": 537,
  "last_page_order": 541
}