The opinion of the Court was by
Whitman C. J.This is an action for thé publication of a libel upon the plaintiff, in a newspaper edited by the defendant. A verdict was returned for the plaintiff; but with the right, on the part of the defendant, to have it set aside, and a new trial granted, “ if the instructions requested and witheld,should have been given; or those which were given were erroneous.”
The first instruction requested and witheld was, “ that the article of 5th of Nov. taken in connexion with that of the 19th is not on its face libellous.” This instruction, we think the Judge did right in withholding. We know of no authority for coupling two articles, not simultaneously published, and not in the same paper or book, for the purpose of ascertaining whether one of them was libellous or not. In this case a fortnight intervened between the two publications.
The other instructions requested were, that, “ if the jury believed, that the defendant, when he published the article, had good reason to believe it true, and published it from good *16motives and justifiable ends, they ought to find for the defendant.” “ That if the defendant published the article in good faith, believing the public had an interest in knowing the facts contained in it, the burthen of proving express malice lies on the plaintiff;” and, “ that, if from the evidence, they were satisfied, that the defendant honestly believed, that the conduct of the plaintiff was such, as induced the defendant to believe the plaintiff had been guilty of the charge imputed to him by the defendant,' and that the defendant did not publish the article maliciously, the jury may well find for the defendant.”
The counsel for the defendant, Mr. Boutelle, has cited numerous authorities, and his argument has been elaborate and ingenious in support of these propositions. But, the authorities, upon examination, will be found to apply to a class of cases very different from the one at bar. They are cases arising from communications to a body having power to redress a grievance complained of; or having cognizance of the subject matter of the communication, to some intent or purpose or other; and to cases of communications made confidentially, or upon request, where the party requesting information had an interest in knowing the character of the individual inquired after; and to cases where a party might be honestly endeavoring to vindicate his own interest; as in the case of the slander of title ; or of guarding against any transaction, which might operate to his own injury ; and to cases of words not in themselves actionable, except from the special injury which they might occasion.
The case at bar is one of a publication addressed to no person or body of men having power to redress a grievance ; and, it is rather superfluous to add, not a confidential communication to any one; and does not appear to have been designed to guard against any injury imminently theatening the individual interest of the publisher; nor does it present a case of words in themselves not actionable.
The allegation in the plaintiff’s writ is, that the publication accuses him of the crime of larceny. This allegation being proved, malice is by law implied, and it would be for the de*17fendant to disprove it. The burthen of proof in such cases is thrown upon him.
But it is incumbent on the plaintiff first to prove, his allegation, that the defendant has, by his publication, accused him of the crime. The terms of the article may, to this purpose, be explicit and unequivocal; or they maybe obscure and unintelligible, in the absence of extraneous proof to show their meaning; as in the case of the use of words, which are mere provincialisms or cant phrases, or terms of art, or where words are used qualifying or restraining the meaning of other words used. In every case it is believed to be the province of the jury, under the instruction of the Court, to determine the import of the language used. 1 Carr & Paine, 245.
The instruction of the Court is nothing more than the term imports. It is not mandatory but advisory. The instruction requested of the Court, we cannot, therefore, on the whole, regard otherwise than as properly witheld.
The argument of the counsel for the defendant seems to concede, that the presumption of malice in this case, if the matter of the publication may be regarded as malicious, is inferable from publication ; and in the absence of all evidence to the contrary, the Court would be justified in advising the jury, that malice was to be inferred ; but the evidence to do away with such a presumption, as has already been seen, must be different from that relied upon in the defence. There was, then, no evidence in the case, which should have had that effect; and the charge of the Judge to the jury would not seem to have been, substantially, at variance with the position admitted, by the counsel for the defendant, to have been correct.
Judgment on the verdict.