Lemons v. Wells

• Decision Date: 23 October 1879
• Citation: 78 Ky. 117
• Parties: Lemons v. Wells.
• Court: Kentucky Court of Appeals

78 Ky. 117

Lemons v. Wells.

Court of Appeals of Kentucky.

October 23, 1879

1. " He, L. W., knew that L. poisoned his mare, and he would have L. arrested on suspicion for poisoning his mare," spoken of L., is actionable.

2. It is not essential that the words spoken charge a felony. Words that charge an offense that is indictable and punishable by fine and imprisonment are actionable.

APPEAL FROM M'CRACKEN CIRCUIT COURT.

MESSRS BIGGER & REED FOR APPELLANT.

1. The words alleged are slanderous. Although they do not import a felony, they charge an offense that is indictable, and may be punished by fine and imprisonment. (Gen. Stat., sec. 7, art 8, chap. 29; 5 Johnson, 190; Am. Leading Cases, 98; 13 Johnson, 124; Ibid, 13; 5 Cowan, 503; 9 Wendell, 141; 3 Hill 22; 24 Wendell, 354; 8 Pick., 385; 91 U. S. Rep., 233; 19 Ohio 450; 27 Ibid, 326; 6 Ibid, 228; Starkie on Slander 134.)

HENRY BURNETT FOR APPELLEE.

1. The words charged are not actionable. They do not import a felony either at common law or by statute, nor do they import a misdemeanor involving moral turpitude. (Gen. Stats., chap. 29, art. 18, sec. 7; 10 B. Mon., 417.)

OPINION

HARGIS, JUDGE:

In this action for slander, the plaintiff, Lemons, alleged in his petition that the defendant, Wells, did … . willfully and maliciously speak and publish of … . him these false and slanderous words: " He (L. W. Wells) knew that Lemons poisoned his horses. He (L. W. Wells) knew that Lemons poisoned his mare Alice, and that he would have him arrested, on suspicion, for poisoning his mare Alice."

To the petition the defendant interposed a general demurrer, which the court below sustained, and plaintiff, failing to amend, dismissed his petition. Were the words set forth in the petition actionable in themselves? The words alleged to have been spoken by defendant, if true, would subject the plaintiff to an indictment, and, upon conviction, to punishment by fine of not less than $10 nor more than $1,000, or imprisonment not less than one nor more than twelve months, or such fine and imprisonment both. (General Statutes, section 7, article 18, chapter 29.)

And in the next section it is provided, that if the poisoned stock die, the offender may be confined in the penitentiary not less than one year.

At common law, actionable words per se were such as imported a felony; but many public offenses were felonies at the common law which are mere...