O'Donnell v. Hastings ( 1885 )

Servers, J.

It is stated in the petition that the defendant maliciously spoke of and concerning the plaintiff the following words: “John O’Donnell, the old scoundrel, came down and stole my bull, and I can prove it; and if he don’t come and settle it up, I will put him through, and will make him pay dear for taking him away.” These words clearly import a charge of larceny, and, under the instructions of the court, the jury, in finding the general verdict, must have found that the words charged were spoken, and . that a criminal offense had been charged.

The jury answered the following question in the negative: “ Did the language used by the defendant, when considered in connection with all the other statements made by him at the same time, on the occasion mentioned in the petition, and also the facts and circumstances, create the impression or belief that the plaintiff had taken his bull, with intent to deprive him (defendant) of the ownership thereof?” In thus answering this question the jury must have found that the words as spoken and understood by the hearers did not charge that the plaintiff had committed the crime of larceny. Whatever the words on their face may have imported, the jury found that no crime was charged. The special finding, therefore, is in direct conflict with the general verdict. In such case judgment must be entered on the special finding. Code, § 2809.

xlEFIRMED.