By the Court,
Bacon, J.I was inclined, upon my first impression of this case, to differ with the learned judge who tried the cause, in his ruling excluding the offered evidence, and in his charge to the jury. But on further reflection, I think he was right. Under the authority of Gidney v. Blake, (11 John. 54,) followed and approved in Ryckman v. Delavan, (25 Wend. 203,) the action was clearly maintainable by the plaintiff. The words were actionable per se, and the plaintiff, as one of the parties included in the language, used by the defendant, could bring his separate action for the slander thus uttered.
On the trial, the defendant, while admitting that he spoke *336the slanderous words, swore that he added immediately, by way of explanation, that he meant “the two youngest boys’ of the father of the plaintiff. The witnesses for the plaintiff all swore that they did not hear these words.' The question then is, whether the judge properly charged the jury that the plaintiff was entitled to recover unless the jury should find that the defendant added the explanatory words “then and there to the knowledge of the persons who heard the words” complained of. The defendant’s counsel insists that if the defendant did in fáct give the explanation he testified to, he is not responsible, whether the witnesses of the plaintiff heard it or not, or whether or not they had knowledge of it; and that to hold otherwise makes the defendant responsible for the .hearing of the bystanders. This is plausible, but I think it is unsound. If a party makes a charge in the presence and hearing of others, which is of a slanderous character, and which in its naked form would by all the bystanders be naturally understood to impute a crime, he is responsible for the utterance, unless the language used is understood by all present .to refer unmistakably to a transaction not criminal but innocent in its character, or he adds an explanation which conveys to the bystanders the fact that he does not make a criminal imputation upon the party pointed at in his words. And, therefore, it is true that a man is, in this sense, and to this extent, responsible for the hearing of the bystanders. If he will use edged tools, he must see to it that he renders their use innoxious; if he chooses to deal in language that ex vi termini imputes crime, he must be careful that by an explanation patent to all, he removes the sting and extracts the venom. Otherwise he is justly held responsible.
The case of Phillips v. Barber, (7 Wend. 439,) is in principle, entirely applicable to this case. The defendant in that case uttered the words “you have stolen my wood,” in a public meeting. All the witnesses that were sworn ifpon the trial, testified that they understood the defendant to allude to a transaction, not felonious in its character; and the *337defendant's counsel insisted that as the words were spoken in reference to a transaction which did not amount to a larceny, the plaintiff could not maintain the action. The judge ruled that the words being actionable in themselves, the defendant was bound to show that they were spoken in reference to property which could not be the subject of larceny; or that the transaction alluded to ivas so explained at the time of the spealcing of the words, that the hearers must have known that the charge did not amount to larceny, and that the defendant not having brought himself within either of these exceptions, the plaintiff was entitled to a verdict. This ruling was approved by the supreme court, Nelson, J. in his opinion, affirming the doctrine that the words being actionable in themselves, could only be deprived of that character by an explanation made at the time.
It is not enough that the party swears that he made the explanation; it must be made to appear that the explanation was heard and understood by the hearers, since only in that event would, the words be rendered harmless in respect to the plaintiff. Nelson, J. adds that it is not necessary that the explanation should be made by the defendant at the time of speaking the words, if all the hearers .are in possession of the facts alluded to when the words were spoken; but the words in that case being uttered in a public meeting, although the witnesses understood the transaction, others were present, as to whom it did not appear that they knew the circumstances out of which the charge arose. In this case there was no offer to show that the witnesses who heard the slanderous words knew, or had ever heard, that the other boys of the plaintiff's father had stolen the defendant’s corn; and consequently, without this knowledge, and in the absence of any accompanying explanation which they heard and understood, the words necessarily imputed a charge of felony, in which the plaintiff was included. This being the true principle, it was properly applied in this case, and the judge rightfully excluded the evidence offered by the defendant, that the two *338younger boys had stolen the corn of the defendant shortly before the speaking of the slanderous words.
In commenting upon the testimony of the defendant in respect to the point whether he did in fact make the explanation he swore he did, the judge added that there was “an oddity and want of symmetry in the language sworn to by the defendant, which the jury might take into consideration in determining whether the defendant did add said words, or not.” The defendant excepted to this part of the charge, and insists that this was erroneous, being an attempt to dictate to the jury upon a question of fact. If this were so, it might, perhaps, be a question how far in that direction it is allowable for a judge, in his charge to a jury upon matters of fact, to go. But I do not understand this to be a direction to the jury to find any fact whatever. It was the utterance of an opinion, that the form of expression which the defendant swore he employed was odd and unsymmetrical to the mind of the judge, and that this might be considered by the júry in aiding them to determine another fact. Now, it is surely allowable in a judge, in commenting upon testimony, to characterize the manner, deportment and mode of testifying exhibited by witnesses on the stand; and this has never been deemed a ground of exception. If the judge has a strong opinion upon the character of evidence and the witnesses who avouch it, I suppose he can express it, although in practice, as1 a general rule, I think the custom is one “more honored in the breach than the observance.” When he goes so far as to dictate to the jury how they shall find, and what verdict they should render upon a naked issue of fact, he transcends the proper limits of a charge, and trenches upon the province of the jury. The true rule I apprehend to be, that the expression of an opinion by a judge, as to the character or effect of evidence, leaving it to the jury notwithstanding to decide the question submitted to them, furnishes no valid ground of exception. See People v. Quin, (1 Park. Cr. R. 340,) where the distinction between this and *339a direction which leaves no discretion to the jury, is very clearly presented. The learned judge, in this case, did not, as I conceive, violate this rule in that part of the charge complained of, and the exception is not well taken.
[Onondaga General Term, October 4, 1864.I am of opinion that the order of the special term, denying the motion for a new trial, should be affirmed.(a)
Morgan, Bacon and Foster, Justices.]
«) See S. 0. post, 655.