The first point raised in this case is in relation to the admissibility of Griffey’s testimony. He was an acting magistrate and usually did the business of the defendant below, and frequently gave advice and counsel. His testimony was thereupon objected to on account of the confidential nature of the communication made to him by Pierson.
The circumstances of the case as above detailed would not have justified the exclusion of the testimony. The rule of exemption within which it is sought to include thi,s case, has never, we believe, been extended farther than to embrace disclosures made to practising attorneys for Jhe purpose of obtaining professional advice. Such a latitude of construction as is now contended for would operate very prejudicially to the public welfare by affording to crime most important facilities for its consummation, and in many cases an impenetrable shield against detection. It would enable malefactors to plot with impunity — to communicate their nefarious designs or exhibit their enticements without restraint to every person who will state that he is accustomed to give them counsel and advice. A single glance is sufficient to show the propriety of confining the exemption to eases of strict professional intercourse.
But the testimony of Griffey as detailed in the bill of exceptions was applicable to neither of the counts on which the defendant was found guilty, and could therefore have had nothing to do with sustaining the action. At the most it only operated as a circumstance to aggravate the *55malice of the defendant below in uttering the actionable words. They went to the jury with all the accompanying circumstances. If they believed the words to have been spoken bona fide with the intention of obtaining advice they did not, of course, regard them as evidence of malice, and therefore gave them no weight.
Another act of the court below which forms an alleged ground of error was the overruling of the motion in arrest of judgment. If the declaration were'sufficient to support the verdict we see nothing in the reasons on which the motion was founded nor in the arguments of counsel which would justify us in interfering with the judgment already rendered.
The third count is that which is regarded as peculiarly defective. The question of the sufficiency of that count turns principally upon the fact of whether the words “you are a dirty, trifling, thieving puppy'” are actionable m themselves. It is contended that the words “theiving and theivish” are nearly synonymous. We think otherwise. The former implies action. The latter mere propensity. The mere ungratified inclination to steal renders one thievish. But he cannot be properly denominated a “thieving puppy” unless practical exercise has been given to that inclination. To call^ another a sheep stealing rogue has been held actionable, 7 Bason’s Mr. 297, and we see no substancial distinction between these words and those set forth in the third count.