#### THE STATE *vs.*JAMES S WHITE.

In an indictment for a libel, charging that the prosecutor “ was called a murderer and foresworn,” it is not competent for the defendant to justify by proving that there was and long had been a general report in the neighborhood that the prosecutor was a murderer and foresworn.

The case of *Hampton*v. *Wilson*4 Dev. 5C8, cited and approved.

Appeal from the Superior Court of Law of Craven County, at the Spring Term, 1847, his Honor Judge Pearson presiding.

The defendant was indicted for publishing a libel of the prosecutor. It appeared, that the prosecutor had made a publication, in which the defendant was mentioned, and the defendant, in replying to it, published the ^writing containing the libellous words. They were as follows : — “ He forgot to tell the people that he is called a murderer and foresworn, &c.” The counsel for the defendant in justification offered to prove, that, at the lime the writing was made and published, and for many years before, there was a general report in the neighborhood, in which the prosecutor and he lived, that the prosecutor had murdered one of his slaves and was foresworn. The Court decided that the proof would not sustain the defence — that, if there was such-a report, the defendant was not at liberty to give currency to it, and put it into the shape of a libel, and that to sustain the plea of justification, it was necessary to prove that the prosecutor had committed murder and was foresworn. Under this charge the defendant was convicted and appealed to this Court.

*Attorney*General, for the State.

No counsel for the defendant.

Nash, J.

We concur in the opinion of his Honor in the Court below. The evidence was offered under our Statute, passed in the year 1803, *Rev. St. ch.*35, *sec.*is,. *181which gives a defendant, charged by indictment with the publication of a libel, the right to prove on the trial the truth of the charges in the libel. To ascertain the meaning of the Act, in permitting the truth of the facts alleged to be given in evidence, it is necessary to see what was the law as to the justification of slander, both oral and written, at the time of its passage. Oral slander has ever been considered as a civil injury, to be redressed by a civil action ; and the defendant was always at liberty to defend himself by proving on the trial that the words spoken were true, that is, that the plaintiff was guilty of the offence, with which he had charged him, and it was essential to the validity of his plea, that it should aver the guilt of the plaintiff in the act charged. 3 Chit. *Plead.*1032. But this was not the case in prosecutions for libels. At no time, by the common law, could a defendant give in evidence the truth of the facts, which he had published of the prosecutor,, and for the reason that a libel tends directly to a breach of the public peace. Whether, therefore, the individual, of whom he made the publication, was guilty or not guilty of the charge, the danger to the public peace was none the less great. This, continued to be the law of North Carolina until the Act of 1803, above referred to. The truth, which that Act gives to a defendant in a prosecution for a libel the right to show, is the truth, which defendants were at liberty, under the plea of justification in civil suits for words spoken, to give in evidence. I have been able to find no-case, in which the slander consists of rumor, where the defendant has been permitted to justify, by showing, that, at the time he uttered or published the slander, there was such a rumor or report. The nearest that any case has come to it is, where the defendant gives the name of the-person, from whom he heard it, at the time of the utterance or-publication. This was ruled by Lord Kenyon in the case *Davis*v. *Lewis, 7*Term R. 17, and in the Resolution of the Judges in the *Earl of Northampton's*case, *18212 Co. 132. But the authority of both these cases, as to that point, has been questioned, uot only in this Country, but in England. Chancellor Kent, in the case of *Dole*v. *Lyon,*10 Johns. 449, which was an action for a libel, in remarking upon these cases observes, “ but in neither of those cases was this the point in judgment, and it may well be questioned, whether even this rule, as to slanderous words, ought not to depend upon *the quo animo,*with which the words with the name of the author are reported.” In the case of *Lewis*v. *Walter,*5 Eng. C. L. Rep. 539, 4 Barn. & Ald. G15, the doctrine in the *Earl of Northampton’s*case is more than questioned by all the Judges. Mr. Justice Hourotd, after remarking at considerable length upon the *dictum*in that case, tells us what he understood to be the meaning of Lord Coke. “ It is observable, says he, that Loud Coke docs not say, that it is lawful to repeal slander in all cases and at all times, but only that a party may justify under certain circumstances. It must not, therefore, be taken as a general rule, even in oral slander, that the malicious repetition of it may be justified, if the name of the author be given up at the time.” The doctrine upou this subject was elaborately considered in the case *Hampton*& *Wife*v. *Wilson,*4 Dev. 468. That was a case of oral slander. The evidence was, that the defendant had said that it was reported the *feme*plaintiff was incontinent. The defendant attempted to justify by proving the existence of such a report at the time he spoke the words. It was ruled by his Honor, Judge Strauge, on the circuit, that the existence of the report would not justify its repetition by the defendant and would not avail him on his special plea ; and upon appeal to this Court the judgment was affirmed. Plis Honor, the Chief Justice, in delivering the opinion of the Court observes, “The justification does not consist, merely in the facts, that the defendant heard the words and gave up his author, for that gives him no right to repeat them, if false ; especially, if he knew them to *183.te false and with intent to cause the guilt of the plaintiff ;o be believed. Such conduct makes him the endorser of the slander, &c.” The reason given by Lord Kenyon, for his opinion in the case of *Davis*v." *Lewis,*is, that, by giving the authors’ name, at the time of uttering the slander? he thereby gives to the plaintiff a person to answer *to*his action. A very insufficient reason, but insufficient as it is, totally inapplicable to general rumor, Against this oft-times many headed monster, the slandered individual can, in the nature of things, have no redress, while the injury to him is spread wider and deeper by every thoughtless or malicious tongue, which chooses to repeat it. The law, while careful that the liberty of speech, and of the press shall bo duly preserved, is equally so» licitous to protect every man in his fair fame and character. In speaking of written slander, in connexion with a justification by giving up the name of the person, from whom it was received, Chancellor Kent, in the ease of *Dole*v. *Lyon,*says ; “ There is no existence of such a justification in an action for a libel.” The Legislature, then, in authorizing the truth to be given in evidence by the defendant on tlio trial of indictments for libel, must have meant, that the justification should have been such, as would have proved an adequate defence at common law in actions for verbal slander. It was nothing more than to extend to' the defendant on prosecution, the same1 defence, as he would have, if called to answer for the private injury. All persons, who concur in doing an unlawful act, are guilty, and equally answerable to the State, when the injury is to the public, and to the individual, who may receive injury from the act. That the’ publisher of a libel cannot protect himself, by giving up' the name of the author, is shewn by the precedents in our books and the practice of our Courts. The cases are many, where the publisher of a newspaper is held answerable, even when the libel is published with the name' of the author. And if giving the name of the author’, of *184him who writes the libel, will not justify him, who makes' it public, much less will the publisher be justified by-giving, as his authority, that perfectly irresponsible per» sonage, common rumor. In this case, the malice of the defendant, an essential ingredient in his offence, is apparent from the terms of the publication and. the excuse-as avowed.

Ruffin, C. J.

The defendant did not attempt to excuso his publication by evidence, that he made it from a different' motive, than the malicious one of defaming the prosecutor, imputed to him in the indictment. He insisted simply, that he was justified by the truth of his words. *The*single *question, then, is,*whether *a*person, with a view to injure the character of another, can publish of him, in writing or print, as a general rumor, that he has been guilty of a felony or of some infamous offence, and justify the publication by evidence of the rumor, and1 without any proof of the guilt of the person ? The very stating of such a proposition in the affirmative shocks the understanding and the sense of what is due to innocence.

It has long been settled, in regard to a private action for such a publication, that the action would lie, “ although that in truth the party might hear” the scandalous words from others. *The Earl of Northampton's case,*IS' Rep. 134; That case was followed by that of *Hampton*v. *Wilson*in this Court, 4 Dev. 468. Lord Coren assigns, as a reason- for the rule, that a person of no estimation might have spoken the words, “"and-if it should be lawful for a man of credit to report them generally, *that*would give greater color and probability that they wore true, in respect of the credit of the reporter.” The remark is founded in good sense and a knowledge of the heart. The publication of such an imputation, though as a general rumor, can only be intended to obtain, in some degree, credence in the truth-of the charge. Therefore the reporter, ought to be required to establish its *185truth, or show some other motive for circulating it, than that of defamation merely.

The same reasons apply with equal force to an indictment, as to an action, for a libel. The publication im. parts to the rumor the credit of the reporter, so as to give that color of probability to the accusation, which his name can procure for it; and it tends as directly to pro* voice a breach of the peace, as if he had affirmed the truth of the charge. As far as the authority of the publisher was intended to sanction the report or give credit to it, to that extent the publication of the rumor is substantially the assertion of its truth. It certainly cannot be understood, that he published it, *as a false*report. Then he must have meant the world to believe, that there was some ground of truth for the rumor ; and, in order that it might be the more readily believed, he gave it the sanction of his name. Such conduct is not only a grie« vous wrong to the good name of an innocent man, but not less seriously endangers the public peace. The Act of 1803 has no effect on this question. It merely allows the truth of a charge to justify it, upon an indictment for a libel, and, in that respect, puts an indictment and a civil action on the same footing ; which was not so at common law. The Legislature did *not*mean, that a person should be liable for a libel, at the private suit of the citizen, because the defendant could not prove the truth of a report published by him, and yet that he should not, for the same reason, bo liable on an indictment for the very same publication. In fine, it could not have been intended, that a person, from ill will to another, might with impunity circulate general reports of scandalous falsehoods respecting the other. Such a rule would give free scope to the worst passions and continually embroil society.

Pbr Curiam, Ordered that a certificate and copy of these opinions be sent to the Court below that they may proceed according to law.