Opinion · Nclaw North Carolina

WILSON v. TATUM, 53 N.C. 300 (1860)

53 N.C. 300

Type
Opinion
Court
Nclaw North Carolina
Jurisdiction
Nclaw
Date
1860-01-01
Topic
general

WILSON v. TATUM, 53 N.C. 300 (1860) JOHN WILSON v. ELIJAH TATUM.Supreme Court of North Carolina (December Term, 1860.) 1. Words charging one with an attempt to commit a felony, however odious, are not actionable per se. 2. Where a declaration contains two counts, and testimony is given as to both, and the judge charges as to both, and a general verdict is given for the plaintiff, if one of the counts be defective, or an error has been committed as to one of them, the defendant is entitled to a new trial.

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WILSONv. TATUM,53 N.C. 300(1860)
JOHN WILSON v. ELIJAH TATUM.
Supreme Court of North Carolina
(December Term, 1860.)
1. Words charging one with an attempt to commit a felony, however odious, are not actionableper se.

2. Where a declaration contains two counts, and testimony is given as to both, and the judge charges as to both, and a general verdict is given for the plaintiff, if one of the counts be defective, or an error has been committed as to one of them, the defendant is entitled to a new trial.Page 230
SLANDER and malicious prosecution, tried beforeBailey, J., at Fall Term, 1859, of WATAUGA.
The declaration contained two counts, one for words spoken, charging the plaintiff with an attempt to commit bestiality, and the other for taking out a warrant against the plaintiff for an attempt to commit bestiality.

The plaintiff produced a warrant, charging as stated in the declaration, which was issued on the affidavit of the defendant. The said (301) warrant had been returned "Executed," and the plaintiff brought before a magistrate and tried. It was shown that on examination he was discharged and the defendant ordered to pay the costs. There was evidence that on diverse occasions he spoke the same charge against the plaintiff and attempted by the production of evidence to establish the truth of the charge.

The defendant's counsel took the ground that the warrant did not charge any offense, but was a nullity, and what was done under it did not amount to a prosecution. Also, that the words spoken were not slanderous, and called on the court to so instruct the jury.

The court declined so to charge the jury, but went on to lay down the rules applicable to slander and malicious prosecution generally, and particularly as to a question of fact, whether in a vague use on one occasion of the words set forth the defendant meant the plaintiff; which question he left to the jury. Defendant's counsel excepted. Under these instructions the jury found a verdict against defendant for $500. Judgment, and appeal by defendant.
Folk for plaintiff.Fowle and Crumpler for defendant.
BATTLE, J.
The plaintiff's declaration contains two counts: one for words spoken and the other for a malicious prosecution. Testimony was given on the trial tending to support both these counts, and the instructions given by his Honor to the jury may be referred, in part, at least, to both the counts, and the verdict of the jury is general. Such being the case, if either of them cannot be supported, or if an error has been committed with respect to either, the defendant is entitled to a new trial.Morehead v. Brown,51 N.C. 267. Now, a mere attempt to commit a felony, no matter how heinous the felony may be, is only a misdemeanor, the punishment of which is not deemed infamous; therefore, an accusation against a man, of such an offense, is not (302) deemed actionableper se, and cannot be made so except by alleging and proving special damage. The count for words spoken cannot, then, be supported, because the record does not show anyPage 231allegation or proof of such special damage. It follows that the verdict, which is general, must be taken to have been rendered on both the counts, and the judgment thereon rendered is, therefore, erroneous, and must be reversed. Had there been no evidence, nor instructions given, applicable to the first count, then the verdict and judgment, though general, would be regarded by us as having been rendered on the second count only, and we should have affirmed the judgment.Jones v. Cook,14 N.C. 112;S. v.Long,52 N.C. 24. But as the case stands, the judgment must be

PER CURIAM. Reversed.