Wozelka v. . Hettrick , 93 N.C. 10 ( 1885 )

It can scarcely be necessary, to sustain these rulings of the judge, to refer to adjudged cases or the authority of elementary writers. The utmost effect that could be given to the bona fide belief by the defendant of the plaintiff's guilt, if the language was thus uttered, was in mitigating the damages, and he had full benefit of this presentation of excuse. It could not justify or exonerate from the consequences of the false accusation. Certainly no wrong was done to the defendant.

After verdict on a motion in arrest of judgment, objection was taken to the sufficiency of the complaint in that the words charged were not actionable per se, and further, that no special damage was averred and none proved.

In our opinion the words in their plain import charge the plaintiff, perhaps not with larceny, for the reason that there was no such dominion acquired over the goods, upon the statement of facts, as made an asportation an essential element in that offense, but with the more serious crime of burglary or that akin to it, described and made (15) infamous by statute.

The facts shown in the defendant's imputations are consistent with the entry of the plaintiff's arm through an open window, yet the hearer is not thus informed, and if he were the statutory crime is fully charged.

The other alleged defect is removed by our ruling that the words are themselves defamatory and admit of a claim for damages. But it is not very clear that special damages are not charged in article 17, on which we express no opinion.

Before concluding the opinion we advert to the narrative and conversational form in which the defamatory language is represented to have been used, obnoxious though in less degree to the criticism made on the complaint in Burns v. Williams, 88 N.C. 159, instead of pursuing the provisions of the statute intended to simplify the pleading. It is not "now necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose." Code, sec. 265.

The circumstances which point the words and convey to the hearer the sense in which they are used are proved before the jury, and it is only material to charge that they were spoken concerning the plaintiff.

There is no error, and the judgment should be affirmed.

No error. Affirmed.

Cited: Fields v. Bynum, 156 N.C. 415; McCall v. Sustair, 157 N.C. 183;Hamilton v. Nance, 159 N.C. 58.