#### THE STATE v. ED. CLAYWELL.

Limitations, Statute of — Slander of Women — Misdemeanors.

The offence of slandering an innocent woman is a malicious misdemeanor, and therefore is not within the operation of the statute (The Code, §1177) barring prosecutions for misdemeanors not commenced within two years.

CRIMINAL ACTION, tried before Clark, Judge, at August Term, 1887, of Iredell Superior Court.

The indictment framed under the statute (The Code, §1113,} is for an attempt, in a wanton and malicious manner, and by the uttering and publishing a slanderous charge imputing sexual criminal intercourse, to destroy the reputation of an innocent woman. On the trial, upon the plea of not guilty, the alleged defamatory words were shown to have been spoken more than two years before the commencement of the prosecution, and to. several persons on different occasions. The accused insisted that he was protected by the lapse of time since the committing of the offence, under §1177, which provides that “ all misdemeanors, except the offences of perjury, forgery, malicious mischief, and other malicious misdemeanors, deceit, &c., shall be presented or found by the grand jury within two years after the commission of the same, and not afterwards,” with the proviso that “ offences committed in a secret manner may be prosecuted within two years after the discovery of the offender.”

The prosecutrix having testified that she first heard of the slander in June preceding the trial, and that as soon as she could trace it to the proper source and get the evidence, the prosecution was started, the State insisted that the offence was a milicious misdemeanor within the meaning of the exception, and if not, was covered by the proviso.

The objection of the defendant to proof of wrhat occurred *732more than two years before the finding of the bill was overruled, and thereto he excepted. No other error is assigned in the record.

There was a verdict of guilty, and from the judgment thereon the defendant appealed.

The Attorney General and Mr. K C. Smith, for the State.

No counsel for .the defendant.

Smith, C. J.,

(after stating the case). The objection must be taken to be directed not so much to the reception of the evidence as to its legal effect upon the question of the defendant's guilt, under his plea. If well taken, and the of-fence charged is one to which the limitation applies, the result would be an acquittal, unless saved by the proviso.

While we do not think the fact, were it true, that the implied sexual intercourse took place in secret, while the defamatory utterance was necessarily in the hearing of witnesses, (and therein, when accompanied with the specified intent, consists the criminal act charged,) brings the case within the operation of the proviso, it is clearly a malicious misdemeanor. Maliciousness in the act is an element necessary to its criminality, both as defined in the statute and as charged and found by the jury. The malice can be directed and entertained only towards the person of whom the false words are spoken, and clearly results from their unwarrantable utterance in the hearing of others. It involves an attempt “in a wanton and malicious manner ” (and herein lies the essence of the crime) to destroy the reputation of an innocent woman; and such would be the tendency, if not the effect, of the charge of unchasteness made against a virtuous woman.

We therefore sustain the ruling and affirm the judgment.

Affirmed.