The facts in this casé are simply these : In November, 1830, Samuel A. Wason came to a tavern in Hudson, where the plaintiff boarded, and then suddenly disappeared, and nothing was seen or heard of him till June, 1835, when he returned. While Wason was thus absent the defendant said in substance that he had no doubt that Wason was murdered at the tavern, and that the plaintiff had a hand in it. On these facts appearing, the defendant’s counsel moved that a nonsuit be entered, on the ground that an action for slander could not be sustained on such a state of facts. But the court refused the motion ; and the trial proceeded, and resulted in a verdict for the plaintiff on the two first counts in his declaration.
Words are in some instances actionable per se: and in other cases an action will not lie without alleging and proving special damage.
Words imputing to another a crime punishable bylaw, are of themselves actionable. By such a charge not only is the plaintiff ⅛ reputation injured, but he is exposed to a public prosecution and the penalties of the law.
There is a class of cases where the slanderous words in terms impute to the party larceny, robbery, perjury, or some other indictable offence, and yet are held not actionable ; because, taking them altogether, they do not, in legal acceptation, contain any such charge ; as, where the defendant had said of the plaintiff that he had stolen a pile of unsettled accounts ; or his standing trees ; or his sable ; none of which can be the subject of larceny, and the taking whereof amounts only to a, trespass. 2 N. H. Rep. 398; 5 ditto 203; 12 Johns. R. 239; and so of the case cited from 1 Johns. Cas. 279.
An action will not lie in these cases, because the hearers must have understood, from the words themselves or from their knowledge of the transaction-referred to, that no crime was in fact imputed to the plaintiff. If, however, the defendant’s language, in its ordinary acceptation, imputed a crime, *58he cannot defend himself on the ground that he referred to a transaction in which no crime was committed, unless he also shew that those who heard the charge knew also the character of the transaction ; that no crime was committed; and that this was the matter spoken of. What the law regards is, the effect upon the mind of the hearer. It supposes him capable of making the true legal inference from the language used ; and if he must have understood that a crime was imputed to the plaintiff, the words are actionable, per se.
The supreme court in New-York appears to have made an exception to this rule. They have held that, where the plaintiff is charged with perjury, the words are not actionable if it appear on the trial that the plaintiff’s testimony, which is said to be false, was irrelevant to the issue. 12 Wend. 500, Powers vs. Price; see 16 Wend. 482, S. C. If, when the charge was made, it was made and so understood by the hearers in reference to testimony wholly immaterial, the case would fall within the principle before adverted to ; no action would lie, because the hearers could not correctly understand that perjury was imputed. But if perjury was in terms charged, and it was not known to the hearers that the testimony was irrelevant, we do not agree that the defendant can be exonerated by afterwards shewing that the charge related to testimony which was wholly irrelevant to the issue; and it was so decided in Butterfield vs. Buffum, 9 N. H. Rep. 156.
In the present case the words spoken charged the plaintiff with being accessory to the crime of murder. There is nothing in the language to qualify this imputation ; and, although it now appears that Wason was living, that fact was not known to the defendant or to those who heard his charge against the plaintiff; but, on the contrary, his sudden disappearance was wholly unexplained, and had excited strong suspicions that he was murdered.
It has%een held, in quite a number of cases, when the de*59fendant is sued for charging the plaintiff with the crime of murder, that the plaintiff must aver the death of the person said to be murdered. The later authorities dispense with this averment, on the ground that the death will be presumed ; but they still seem to hold that, if the person is in fact living, it is a good answer to the action. Cro. Eliz. 823; 4 Coke R. 16, a; Cro. James 215; Cro. Car. 489; Buller N. P. 5.
In Snagg vs. Gee, 4 Rep. 16, a, the plaintiff shewed in his declaration that the defendant had a wife yet living, and that the defendant said of the plaintiff, Thou hast killed my wife. On demurrer, the defendant had judgment; for, the wife being alive, it appears that no murder of her could have been perpetrated; and so the plaintiff cannot be in jeopardy.
Upon this case it was said by chief justice Popham, that “ for his part he never was, nor yet is satisfied with the law of Snagg’s case, in the Fourth Report; for, whether she be living or dead, the scandal is the same to the bystanders, who, perchance, did not know that she was living ; and so the scandal was never the less.” Winch 40; Auditor Carle's case, 20 Jac. 1. And about the same time, in a case where the charge was, that the plaintiff had perjured himself in a suit in such a court, it was objected, in arrest of judgment, that the fact that a suit had been prosecuted did not sufficiently appear; and, if none had been instituted, the plaintiff could not have been exposed to legal penalties ; but the court gave judgment for the plaintiff, saying, “It is not material whether there be a suit or not, for the plaintiff is scandalized, and those who hear the speech will not enquire whether there was a suit or not.” 2 Rol. R. 471, Yates’ case.
The earlier cases in the action of slander are full of absurdities and contradictions; and are indeed of very little authority. Thus a rule at one time prevailed, that in deciding upon the defamatory character of words spoken, the mildest interpretation of which they were susceptible should be given to them.
*60In the case above cited from Cro. James 184. the words were : “ Sir Thomas Holt struck his cook on the head with a cleaver, and cleaved, his head; the one part lay on one shoulder, another part lay on the other.” After verdict for the plaintiff, judgment was arrested, because it did not appear that the cook was killed.
Such decisions, however numerous, cannot be sustained at the present day.
Starkie, in his treatise on Slander, page 71. puts the question on its true ground., He says : “ The actionable quality of words spoken must depend upon the fact, whether the hearers are aware that the person alleged to have been murdered was really alive, If they did not know the fact, then all the consequences, the probability of which renders such a charge of murder in any case actionable, may follow: since several melancholy instances may be cited, where an accused person has suffered for the murder of one who has survived him.” See, also, 16 Pick. R. 4.
It is said there is no legal probability of damage, when the murder imputed has not been committed. The same objection might be made in all cases of innocence, as the law does not contemplate or intend that an innocent person should suffer. This would be a fatal objection to all actions for slanderous words imputing a crime, fox in all such cases the plaintiff’s claim is on the ground of the entire falsity of the charge, and of his own innocence. ,
It is moved, in arrest of judgment, that the words as set forth do not charge the plaintiff with having been accessory to the murder, .
In the first count the words are, that Wason was murdered by James Tenney, and the plaintiff and others were concerned with him; meaning that the plaintiff and others were concerned with said James in murdering said Wason.
In the second count the words set forth are, that Wason was murdered at the tavern, and the: plaintiff had a hand in it; meaning the plaintiff aided and assisted in murdering the *61said Wagon. We think these counts and innuendoes are sufficient. To say that a man is concerned in an act, or had a hand in it, is, in common understanding, to charge him with having been engaged as a party to the act, and as aiding and assisting in its performance; and it is alleged in the innu-endoes that the defendant so meant and intended. There must, therefore, be
Judgment on the verdict-