(charging the jury.)
The first question for your decision is whether the defendant in fact ever uttered the words imputed to him.
The substance of the slander imputed to him is that the plaintiff burned down the school house in question. It is not necessary to prove the precise words of the declaration, but it is sufficient to prove the substance of them. The proof must be that the words were spoken in the same manner. Interrogative words proved will not support words alleged affirmatively. Words alleged to have been spoken to the plaintiff are not supported by words proved to have been spoken to a third person of the plaintiff, and where a positive and unconditional charge has been alleged in the declaration it must be so proved, for if it appears from all the evidence in the case that the words charged were conditional or in the alternative, such as that “ if he did it ” or “ I believe he did it or knows who did it ” and the like, it will be a fatal variance and will entitle the defendant to a verdict.
“ The words declared upon in this case impute a crime to the plaintiff and are in themselves actionable. In such case the law presumes malice, and it is not necessary to prove express malice to *413entitle the plaintiff to a verdict, for the law implies that he has received some damage. As the law is now settled, it may be laid down as a general rule that where the words are calculated to impress on the minds of the hearers a suspicion of the plaintiff’s having committed a criminal act, such an inference may and ought to be drawn, whatever form of expression may have been adopted, whether the words spoken implied such criminal act directly or indirectly ; ” Goslin vs. Cannon, 1 Harring. 5.
Under the statutes of this State the burning of a school house is a felony, a high grade of crime; in this case, therefore, the words, if they were spoken, directly charged crime and are actionable in themselves.
The defendant in this case has pleaded not guilty, and thereby claims that he did not utter the words as alleged substantially.
If therefore from a preponderance of the evidence you should believe the words charged were uttered as alleged the plaintiff will be entitled to a verdict. The law in such case presumes malice and implies that the plaintiff has received some damage. It will not permit character, so sacred to every one, to be thus attacked and smirched. Before rendering such a verdict, however, you must be satisfied that the slander was uttered in substance as charged. While actions for slander are not to be encouraged) slanderers are, nevertheless, to be treated by courts and juries in such a way as to afford some reasonable protection against their unbridled tongues; Kennedy vs. Woodrow, 6 Houst. 52.
It is claimed for the plaintiff in this case that there is not only implied malice, which the law presumes where the words spoken impute a crime, but that express malice has been proved; that is, that the words were not only uttered, but were used in a vindictive and malevolent spirit, with malicious intent to injure the plaintiff, and that therefore he is entitled to punitive or exemplary damages.
Express malice must be proved; it is never implied or presumed. It may be proved, however, either directly or indirectly; from all the proof and circumstances surrounding the case. In de*414termining this fact, the jury may consider the frequency and publicity of the slander, if uttered at all, the manner of utterance; the language used, and all and every circumstance that shows the intent. You may gather from all these whether the language used,' was the expression of indignation of a citizen interested in the town in which he lived, against the supposed crime and criminal, for the destruction of a public building, or was that of a heart influenced by ill-will against the plaintiff. In order to find express malice, you must be satisfied by the evidence in the case, that in using the words imputed the defendant was actuated by personal ill-will against the plaintiff and maliciously intended to do him injury.
If from all the evidence, you should be satisfied that the words were uttered by the defendant as alleged; that is, simply charging the crime, your verdict should be for the plaintiff, for the amount of his actual injury as proved; if not so satisfied, your verdict should be for the defendant. If you should be satisfied that he not only uttered the words, but in addition thereto, that the words were maliciously and vindictively used, with intent to injure the plaintiff, you may give exemplary damages, to punish the defendant for his wrong, without having regard to proof of actual damage. Kennedy vs. Woodrow, 6 Houst. 52. Punitive damages however can only be given where there is clear proof of express , malice.
If your verdict should be for the plaintiff, in estimating damages you may take into consideration the position, rank, and influence of the defendant in the community. But you must not take into consideration his pecuniary condition. The damages are to be measured by the injury done, and not by the poverty or riches of either the plaintiff or the defendant. In estimating damages you may also take into consideration, the existence of general rumors or general suspicion that the plaintiff was guilty of the crime charged, prevailing in the community, at or before the alleged slander, if any such there were. While the existence of such rumor, does not justify slander, yet under the plea of not guilty, it is admissible in mitigation of damages; and properly so, in order that the jury may judge, how far the injury complained of may have *415been the result of such general rumor, and how much may have been peculiarly and specially produced by the utterance of the defendant alone. The defendant can be held liable only, if at all, for so much of the injury as he has caused, and not for that caused by general rumor which is the act of other people. This also gives the jury an opportunity to judge, how far the suffering and injury growing out of such general rumor is increased or intensified by the contribution of the defendant thereto.
The law presumes that the defendant is innocent of the offense charged. It is, therefore, incumbent upon the plaintiff, and the burden is upon him, to prove to your satisfaction by a preponderance of proof, that the defendant is guilty, and unless he shall so prove, your verdict should be for the defendant.
Where evidence is conflicting, as in this case, you should harmonize it if you can, and deduce from all the evidence a just conclusion. If unable so to harmonize it, you should accept such evidence, as from all the circumstances is most credible, taking into consideration the reasonable probabilities of the case, and the apparent knowledge, intelligence and fairness - of the witnesses and their opportunities for obtaining correct information.
You have heard all the evidence, and of that evidence you are the sole judges. It is now your duty under the solemn sanction of your oaths to weigh and consider it carefully, and under the law govering the case as above laid down to you by the Court, to render a verdict thereon, such as your conscince shall approve as just and right, having regard only to the evidence heard by you in this court room upon that witness stand.
Verdict for the defendant.