The complaint contains three counts, each alleging that the defendant falsely and maliciously charged the plaintiff with larceny, by speaking of and concerning him the words set forth. The words in substance are that the defendant stole the plaintiff’s cabbage, or, as expressed in the third count, that the defendant stole a “wagon load of cabbage.” The case was tried upon the plea of the general issue, the only plea filed, and the plaintiff obtained a verdict and judgment. The appellant, who was the defendant in the court below, first insists that error was committed in refusing his request for the affirmative charge; and this contention rests upon three grounds, which we will consider in the order in which they have been argued.
The time of the speaking of the words is in each count *658laid under a videlicet, the office of which is to mark that the party does not undertake to prove the precise time alleged. The allegation as to time was not descriptive of the identity of the subject of the action, and was not necessary to be exactly proven. — Simpson v. Talbot, 25 Ala. 469; 1 Greenleaf on Ev. § 60; 13 Ency. Pl. & Pr. 67, note 4.
We discover no substantial variance between the words alleged and those given in evidence. It is not necessary to prove the words literally. It is sufficient if those charged be substantially established. — Scott v. McKinnish, 15 Ala. 662, and authorities there cited; 13 Ency. Pl. & Pr. 63. The word.s of the second count, however, seem to have been literally proven.
The words used by the defendant, in their ordinary signification and standing alone, imputed to the plaintiff the infamous crime of larceny, and hence were, if false and malicious, actionable without proof of special damage. No doubt, the defendant, upon settled principles of law, would have been allowed to show, if he had offered to make such proof, that the words were spoken in reference to the severing by the plaintiff from the soil of growing cabbage and his taking them away by one continuous act, thereby imputing a trespass merely, notwithstanding the use of the mose offensive word “steal,” and that this application of the words was known or communicated to his hearers at the time.— Norton v. Ladd, 5 N. H. 203, 20 Am. Dec. 543; Dunnell v. Fiske, 11 Metc. (Mass.) 559; Parmer v. Anderson, 33 Ala. 78; Williams v. Cawley, 18 Ala. 206; 18 Am. & Eng. Ency. Law (2d Ed.) 888. But there is an entire absence of any proof that the hearers of the words either knew or were informed that the defendant had reference to a mere trespass, instead of to a felony. It will not avail the defendant that the plaitniff had in fact not committed the crime of larceny, nor been guilty even of a trespass. “It is actionable per se to charge a person with having; committed a crime, even though such crime has not been committed, if the hearers of the slander do not know that circumstance.” — 18 Am. & Eng. Ency. Law (2d Ed.) *659874. It results that the affirmative charge requested by the defendant was properly refused.
There ivas no error in giving charge 2 at the request of the plaintiff. It asserts in substance that if the words used were intended to impute to the plaintiff the (‘.rime of larceny, and if they were false and were used by the defendant because of anger and ill will towards the plaintiff, then the words were used maliciously. It has often been said that malice is the gist of the action of slander or libel;-and of malice there are two kinds, express and implied. Implied malice alone is sufficient, where other elements exist, to support the action; while express malice ivill authorize punitive damages. “Malice in fact may be defined as a spiteful or rancorous disposition which causes an act to be done for mischief.”— Childers v. San Jose Pr. & Pub. Co., 105 Cal. 284, 38 Pac. 903, 45 Am. St. Rep. 40. If the. jury found the facts to exist as hypothesized in the charge, then there was not only the malice which the law, under the conditions of this case, presumes from the use of the false words, imputing larceny, but express malice as well, growing out of the defendant’s ill will towards the plaintiff and the purpose to do him injury; and the evidence, without dispute, authorized the jury to so find.
There is no error in the record, and the judgment is affirmed.
Affirmed.
Tyson, Simpson, and Anderson, JJ., concur.