By the Court,
Savage, Ch. J.The defendant in error contends that this case comes within the principle of the cases of Van Rensselaer v. Dole, 1 Johns. Cas. 279, and Dexter v. Taber, 12 Johns. R. 239. In the first of those cases the words charged the plaintiff and others with being robbers and murderers, but were understood by the witnesses to relate to an unpleasant fracas which took place the day preceding, and which was nothing like robbery or murder. In the latter the charge was that the plaintiff was a thief, and that he stole hoop poles and saw logs, and the witnesses understood the charge to relate to cutting standing timber. The words “ you are a thief, you stole hoop poles and saw logs,” might mean a charge of felony, or only a trespass, as both words were used to describe standing and felled timber ; it was left to the jury, therefore, to ascertain in what sense the defendant used the words ; not whether the transaction itself was a trespass or a felony. In analogy to this last case, if there were any, the jury here should have been instructed to determine whether the defendant intended to charge the plaintiff with a felony, or with taking the barrel of pork by mistake.
The case of Van Rensselaer v. Dole, proceeds upon the principle, that notwithstanding the language used, the crimes imputed by the words could not have been intended to have been charged, as they related to a very different transaction. That case bears no analogy to this; here it might well be that the plaintiff feloniously exchanged the barrel of prime pork for one of mess; and if so, he was a thief. In the case of Dexter v. Taber, the words spoken were ambiguous : “ you stole hoop poles and saw logs.” These words the court said might mean either timber standing, or that which had been cut; if the for*178mer, it was only a trespass ; but there is no such ambiguity ^ere; there is no sense in which a man may be said to steal a barrel of pork without committing a felony ; and there was no allusion to a transaction which could not be felony. There is, therefore no analogy between this case and the two which have been cited.
The testimony of Babcock was improperly received, as the defendant disavowed justifying. Unless the defendant could justify by the testimony of Babcock, it could be of no use to him. If the pork was taken by mistake, he had no right to charge the plaintiff with stealing. The defendant’s notice seems to have a justification in view, though it does not state that the evidence will be offered in justification ; neither does it purport to be offered in mitigation. It certainly fails in shewing that the transaction could not be a felony, and that therefore the words were innocent.
Judgment reversed, costs to abide the event, and venire de novo to be awarded by the Yates common pleas.