#### JOHN WILSON v. ELIJAH TATUM.

Words charging one with an attempt to commit a felony, however odious, are not actionable per se.

Where a declaration contains two counts, and testimony is given as to both, and the Judge charges as to both, and a general verdict is given for the plaintiff, if one of the counts be defective, or an error has been committed as to one of them, the defendant is entitled to -a mew trial.

Action on the case for slander and for malicious prosecution, tried before Bailey, J., at the Fall Term, 1859, of Watauga Superior Court.

The declaration contained two counts, one for words spoken, charging the plaintiff with an attempt to commit bestiality, and the other for taking out a warrant against-the plaintiff for an attempt to commit bestiality.

The plaintiff produced a warrant, charging as stated in the *301declaration, which was issued on the affidavit of the dteféndant. The said warrant had been returned “ executed!,” and the plaintiff brought before a magistrate and tried. It was shown that, on examination, he was discharged, and the defendant ordered to pay the costs. There was evidence that, on divers occasions, he spoke the same charge against the plaintiff, and attempted by the production of evidence, to establish the truth of the charge.

The defendant’s counsel took the- ground, that the warrant did not charge any offense, but was a nullity, and. what was done under it did not amount to a prosecution:.. Also- that the words spoken were not slanderous, and called on the-Court so to instruct the jury.

The Court declined so to charge the- jury, but went on. to-lay down the rules applicable to slander and malicious prosecution generally, and particularly, as to a question, of fact, whether, in a vague use, on, one occasion., of the words set forth, the defendant meant the plaintiff. Which question he left to the jury. Defendant’s counsel excepted. Undier these instructions, the jury found a verdict against the defendant for $500. Judgment and appeal by the defendant.

Folk, for the plaintiff.

Fowle and Grumpier, for the defendant.

Battle, J.

The plaintiff’s declaration contains two counts; one for words spoken, and the other for a malicious prosecution. Testimony was given, on the trial, tending to support both these counts, and the instructions given by his Honor to. the j nry may be referred, in part, at least, to both the counts, and the verdict of the jury is general. Such being the case, if either of them cannot be supported, or if an error has been committed with respect to either, the defendant is entitled to anew trial; Moorehead v. Brown, 6 Jones’ 267. Now, a mere attempt to commit a felony, no matter how heinous the felony may be, is only a misdemeanor, the punishment of which, is not deemed infamous, therefore an accusation *302against a man, of such an offense, is not deemed actionable per se, and cannot be made so, except by alleging and proving special damage. The count for words spoken cannot, then, be supported, because the record does not show any allegation, or proof, of such special damage. It follows that the verdict, which is general, must be taken to have been rendered on both the counts, and the judgment thereon rendered, is, therefore, erreneous, and must be reversed. Had there been no evidence, nor instructions given, applicable to the first count, then the verdict and judgment, though general, would be regarded, by us, as having been rendered on the second count, only, and we should have affirmed the judgment; Jones v. Cook, 3 Dev. 112; State v. Long, 7 Jones, 24. But as the case stands, the judgment must be reversed, and a venire de novo awarded.

Per Curiam,

Judgment reversed.