This was case for slanderous words. The (349) defendant said of the plaintiff: "He saw her and Eli Lowrance apparently come from the same place out of the bushes along Mrs. Sharpe's lane, about 100 or 200 yards from the house, in a stooping position; they must have been down at it, or he would have seen them sooner, for he was in ten or fifteen steps of them before they saw him, and the fence was low and the bushes were low. There had been old reports, but he *Page 240 had never seen anything amiss and knew nothing against her until now. They looked just like a man and his wife, if anybody was to come along and catch them at it. The plaintiff had said that on that occasion she was looking for a turkey's nest. They were the worst confused people he ever saw; they were confused to death. The plaintiff's face looked like it would light a torch, it was so red. If it ever came to a suit he would make Abner swear hard. He did know things against her, and on oath he would be obliged to tell it. He was now done with her, and he would stop his daughters from school; they should not associate with her any more."
The defendant relied on the plea of justification, and "offered some evidence on that plea, and then proposed to prove an act of illicit intercourse between the plaintiff and Eli Lowrance at another time and place from that charged in the declaration under his plea of justification. This evidence the court rejected, and for this the defendant excepts." The other exceptions are clearly against the defendant, and not debatable, so it is unnecessary to state them.
The jury found for the plaintiff, damage $500, judgment, and the defendant appealed.
The defendant, in the words of his bill of exceptions, having offered some evidence under the plea of justification, then proposed to prove an act of illicit intercourse between the plaintiff and Eli Lowrance (350) at another time and place from that charged. In other words, having failed to prove that the plaintiff was guilty of the particularoffense with which he had charged her, he offered to prove that she was guilty of a like offense with the same man. This he was not at liberty to do. The question is settled. Watters v. Smoot, 33 N.C. 315. "When the charge is particular, and the defendant, at the time he speaks the words, selects a specified offense, he is bound by it, and his plea must rest on that particular matter. The principle is, the defendant, in a plea of justification, must aver and must prove the identical offense; and when any circumstance is stated which is descriptive of and identifies the offense, it must be averred and proved for the purpose of showing that it is the same offense. Accordingly, it was held in that case that although whether A. or B. be the man, forms no part of the essence of the offense and is not material in regard to the guilt of the plaintiff, still, if by way of describing the offense, A. is named as the man, an act with A. must be averred and proved.
Upon this principle, a charge that C. passed to A. a counterfeittwo-dollar South Carolina bill is not sustained by proof that he passed to A. a counterfeit thirty-dollar Virginia bill. That C. committed perjury on a trial at Morganton in a suit between A. and B. is not sustained by *Page 241 proof that he committed perjury on trial at Salisbury in a suit between A. and B. That C. stole the black horse of A. is not sustained by proof that he stole the white mare of A. These circumstances are descriptive, and unless they be proven, it is not the same offense. It is merely an offense of the same kind. If the "earmarks" are given, they must be proven.
The defendant in this case gives, then, other descriptive circumstances, besides naming the man, place, time. "There had been old reports, but he had never seen anything amiss until now." So it was recent in point of time, but a few days at farthest, and the circumstance that he was an eyewitness, almost saw them in the (351) very act. There are authorities requiring each of these circumstances to be averred in the plea, and, of course, to be proven. Craft v.Boite, 1 Sanders, 242. The words were, "he stole £ 200 worth of plateout of Wadham College." The plea (drawn by Sanders) sets out, "he, the said Joseph Craft, three ounces of silver plate of the goods and chattels of the warden, fellows, and scholars of the college called Wadham College, in the university and city of Oxford, in the county of the same city, and at the said city of Oxford in the county of the said city,within the said college, found, feloniously, and as a felon, stole, took and carried away." Sergeant Williams, in his note, says: "The plea of justification seems to be properly pleaded. It confesses the speaking of the words alleged in the declaration, but says the plaintiff was guilty of a felony, and specifies the nature of it, together with the time when, and the place where, the plaintiff committed it, so that the plea alleges the plaintiff to be guilty of that species of felony which the defendant charged him with, and, therefore, the plaintiff may come prepared to answer and disprove it at the trial." In Upshur v. Betts, Cro. J., 578, the words were, "he is a bankrupt." The words were spoken the first of April, in the 17th year of James I. The plea averred that the plaintiffwas a bankrupt on the 15th of April in the year of the same reign. Held, ill. The court remark, "from that is averred, he may now be a good merchant." There, time was material, and it was necessary to aver and prove it, otherwise the charge made was not shown to be true. 3 Chitty's Pleading, 1040, is this precedent words: "I saw the ship, and the scaff of the keelson was open, so that I could put my four fingers in edgeways." Plea: "Before speaking the words, to wit, at, etc. (venue), he, the said defendant, had seen the said ship, and the scaff of the keelson of the said ship was open, so that he, the said defendant, could put his four fingers in edgeways." This is an authority as (352) to the descriptive circumstance of being an eyewitness. But the authorities even require quality and number, when descriptive of the act, to be precisely averred and proved. Cook on Defamation, 78, refers *Page 242 to a case as cited by Starkie — words, "he has robbed me to a seriousamount. Plea, he robbed him of a loaf of the value of three pence. The jury found the justification as pleaded, but were directed to give some damages in respect to the words, "to a serious amount," which were not justified. Johns v. Gettings, Cro. Eliz., 239, words, "thou hast stolen my cloth and a half a yard of velvet" — plea, "he did steal the velvet" — bad, for it did not answer the words, thou hast stolen mycloth. Tisk v. Thorowgoord, Cro. Eliz., 623. The plaintiff and one F. S., under a commission issued out of chancery, took and returned the examination of several witnesses — words, "the plaintiff had returned, as depositions, the examination of divers that were never sworn"; plea, "the plaintiff did return the examination of one F. S., who was never sworn" upon demurrer, adjudged, no good justification, because it is of one witness only, whereas the charge was placed in the plural number." The authorities, then, sustain the position that the defendant must aver in his plea, and prove, the very charge. As it is said in Watters v.Smoot, supra: "This is obviously right, because having, for the sake of giving point and force to his charge, gone into particulars, and having had the advantage of thereby making his accusation the more plausible, he has no right to complain that he is not allowed to make a departure and run over the plaintiff's whole life to see if there be no shame in it." If a woman some twenty years ago had fallen into error, but had since atoned for it as far as was in her power by an irreproachable life, and it be said of her, "many years ago she was guilty of fornication," although the allusion be prompted by a cruel and malicious spirit, she must submit, for it is true; and it may be, if it be said (353) "she is an unchaste woman" she must submit (although probably it would come under Upshur v. Betts), but if it be said "she was caught last night in A.'s bedroom, and they were in bed `at it,'" the slanderer cannot protect himself by proving her former guilt, although it may happen to have been committed with A., because he has made a particular charge and must prove it or stand convicted of falsehood. The bare suggestion that such a plea can justify such a charge shocks common sense.
It is said, if this strictness is required in proving the particulars which are descriptive of the offense, the plea never can be made out, as a few hundred yards in reference to place and a day in reference to time would be fatal.
It is true, this plea is not favored, but when other descriptive circumstances are proven, so as to show clearly that it is to offense charged, a slight variance in some of the other circumstances, which may be ascribed to mistake, would not be fatal. Like all questions of identity, the inquiry would be, does the proof establish it? notwithstanding a *Page 243 mistake in a part of the description, as if the place was a few hundred yards from the lane, or it was Saturday night instead of Sunday night, or the man turned out to be B. instead of A., in the case above supposed, the mistake being accounted for by the fact that it was in the bedroom of A.
It is so usual for time and place to be laid as a mere formal part of the pleading, where they are not material and need not be proven as laid, and ought to set out under a "videlicit," that we are apt to fall into error in regard to them, and look upon them as immaterial, when in truth they are material as forming a part of the description, and must be averred and proved with as much certainty as any other part of the description, for this reason, a full extract was taken from Sanders as an instance where "the place" was material. The plate was alleged to have been stolen out of Wadham College. The place (354) there identified the offense, and it is not put under a videlicit, as an ordinary venue, but is specially stated. This, it will be remarked, was after 17 Car. II, ch. 8, dispensed with a particular venue, and it was sufficient to lay "the country," for the purpose of an ordinary venue, where place was not material. But if the place was material it was specially laid, as in that case. So, in trespass for an assault and battery, laying the venue in the county of Burke, if the defendant justifies, as sheriff of the county of Iredell, under an execution, his plea must aver that the act was done in Iredell at a certain time, when the execution was in force, and traverse the venue and time formally laid in the declaration, because time and place are made material by the plea.
It is said that a variance in the proof of the words charged in this case, in reference to time and place, would be fatal. That is merely stating the same question in a different way.
If time and place be material as a part of the description, the proof must correspond with the words as laid. It may be that where the words charged are general, proof of words in which the charge is made with more particulars would not be a fatal variance, because the defendant is benefited by being let into a more general plea. But where the words charged go into particulars, and time and place are descriptive, as in the case of the bedroom before supposed, the proof of words in which the charge is made in general terms would be a fatal variance, as in that case, if the words proven were that the defendant said, "the plaintiff and A. were caught at it," for in such a case the defendant would, by making the charge as set out in the declaration a particular one as to the bedroom and nighttime, be taken at a disadvantage in regard to his plea. *Page 244
It is not necessary to consider whether the words in reference toAbner import a general charge, and so would have let in more general plea, because the point is not made by the bill of exceptions, and (355) such a plea would still have left the particular charge unanswered, and the verdict must have been for the plaintiff.
PER CURIAM. No error.
Cited: McAulay v. Birkhead, 35 N.C. 32; Davis v. Lyon, 91 N.C. 447.