Erwin v. Sumrow. , 8 N.C. 472 ( 1821 )

The essence of the charge in the declaration consists in the malice of the publication and the intent to defame the plaintiff; and, although from the publication of a libel, unexplained, malice will be prima facie implied, yet, as the act may be innocent, and in some cases justifiable, the circumstances under which it was done were proper to have been left to the jury. It is the same, in principle, with an action of slander, where the defendant may give in evidence, the manner and occasion of speaking the words, and repel, if he can, the implication of malice arising from utterance. If the defendant could satisfy the jury that the paper was left in Hoke's window with an innocent intention, it would have explained what otherwise wears the appearance of a malicious publication. There ought to be a

New trial.

Cited: Hoyle v. Stowe, 13 N.C. 321; Allred v. Smith, 135 N.C. 449.

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