Dexter v. Taber , 12 Johns. 239 ( 1815 )

Per Curiam.

The motion for a new trial must be denied. The slanderous words charged in the declaration are, that the defendant said, to the plaintiff, 11 You are a thief.” The witness who proved the speaking of these: words, went on to explain in what connexion, and in reference to what subject the words were spoken, to wit, “ You are a thief, you have stolen hoop poles and saw logs from off Delancey's and Judge Myers's land,” alluding to certain wood lands belonging to those persons. The charge thus made may be equivocal and somewhat doubtful ; and had the whole charge, as made and proved, been set out in the declaration; and if this was a motion in arrest of judgment, it might well be contended that the words import a charge of felony. But it wag correctly stated to the jury, that if the defendant intended to charge the plaintiff with taking hoop poles and saw logs, already cut, it was a charge of felony. But if he only meant to charge him with cutting and carrying them away, it was only charging him with having committed a trespass. And in what sense the words were intended to be used was for the jury to determine. This point is well settled, both in our own, and in the English courts, (1 Johns. Ca. 279. Wm. Black. Rep. 959. Cowp. 278. 9 East, 96.) The terms ?s hoop poles” and “ saw logs,” in common parlance, are used indiscriminately, as applicable both to standing and felled timber of these descriptions. And the jury have found, that the words were used in the former sense ; and, of course, not amounting to a charge of felony. And the facts in the case fully warrant the finding pf the jury.