Perdue v. Burnett , 1 Minor 138 ( 1823 )

Opinion of "the Court as delivered by

Judge Crenshaw.

The first and principal assignment of Errors is, that the words charged in the declaration are not in themselves actionable, and that no special damage is laid.

The words charged are, “ You, (meaning the said Lewis Burnett) have altered the marks of four of my hogs not alleging that it was done without or against the owner’s consent. By the twenty-third section of the Act of February, 1807, (Laws Alaba. p. 209,) any person convicted of altering or defacing the mark or brand of any animal therein mentioned, among which hogs are enumerated, shall pay the value thereof to the owner, and a fine of twenty dollars to any person suing for the same ; and shall receive twenty-five lashes for the first offence : and by the third section of the Act of 1811, (Laws of Ala. p. 224,) this offence is punishable on conviction by indictment, by forfeiting and paying the value of the animal, and also a fine of twenty dollars to the owner. It is a safe rule to give to pena} laws a strict construction. I have no doubt but that the Legislature intended by the last Act to substitute a milder punishment than had been provided by the first, but that they did not ill-.tend to change the nature of the crime.

In the case of Coburn against Harwood, (ante, p. 93,) this Court decided that words are in themselves actionable? winch, if true, would subject the- plaintiff to an indictment for a crime involving moral turpitude, or subject him to infamous punishment; and that slanderous words are to be construed in the natural and obvious sense in which the world understand them. The principles of that decision were maturely considered, and I see no sufficient reason to depart from them.

Is, then, to alter the mark of a hog without or against the owner’s consent, an indictable offence involving moral turpitude, or one which would subject the offender to infamous punishment 1 The Statute uses the expression “ on conviction by indictment.” It cannot therefore be denied that the offence is indictable. The punishment is not infamous, this idea being usually and perhaps exclusively attached to corporal punishment.

Does the offence then involve moral turpitude ? in other words, is it an infamous offence ? Capital offences of all grades are infamous, by reason of their atrocity. So are ail grades of the crimen- falsi ; because fraud is an essential ingredient. For the same reason, Larceny is infamous, independent of its punishment.

To alter the mark of another’s hogs without or against the owner’s consent, is so near akin to larceny, that the ablest lawyer in criminal jurisprudence might find some difficulty in drawing the line of distinction. The animo fu-randi is the moving principle of action in both cases. If this reasoning be correct, the irresistible conclusion is, that this offence is indictable and involves moral turpitude : and that words importing a charge of this sort are in themselves actionable.

It is further assigned as Error’ — that the declaration does not allege that the marks were altered without or against the owner’s consent. The declaration states in effect that the .defendant uttered the words falsely and maliciously, and' with a view of subjecting the plaintiff to the pains and penalties of the law provided against this offence, and describes the law with so much certainty and precision that it cannot be mistaken. The recital of the law makes it a part of the declaration, and it is virtually alleged that the marks were altered without the owner’s consent. The defendant, with ■the intent of charging the plaintiff with this particular crime, says to him, “ You altered the marks of four of my hogs.” The natural and obvious sense in which the world would understand these words when maliciously spoken, is, that they amounted to a charge of altering the marks without or against the owner’s consent. The words, when falsely and -maliciously spoken, necessarily imply, -and to a common tin-tierstanding, as clearly convey the charge of guilt, as if the words “ without or against the owner’s consent ” had been added. The omission of this allegation is therefore immaterial: at rate, it is cured the verdict.

Owen, Gayle, and Bagly, for plaintiff. Dillett, for defendant in Error.

It then follows, that the woi’ds set forth in the tation, taken in the natural and obvious sense in which the world would understand them, charge an offence subject to an indictment, and involving moral turpitude, and are in themselves actionable.

As to the third assignment of Error. This Court will presume that the Jury were duly impannelled and sworn ; as was settled in the case of Goyne against Howell, (ante, p. 62.)

2.) It is further assigned as Error — that the judgment is in Debt when it should be for damages. If the verdict and judgment are right as to the sum recovered, it is immaterial whether it be called Debt or Damages. They refer to the declaration, by which it is rendered so certain, that it may be plead in bar to a second action for the same cause.

Let the judgment be affirmed.