Jones v. Brinkley

• Decision Date: 12 September 1917
• Docket Number: 11.
• Citation: 93 S.E. 372,174 N.C. 23
• Parties: JONES v. BRINKLEY.
• Court: North Carolina Supreme Court

93 S.E. 372

174 N.C. 23

JONES v. BRINKLEY.

No. 11.

Supreme Court of North Carolina

September 12, 1917

Appeal from Superior Court, Gates County; Daniels, Judge.

Action for slander by Alverta Jones against Abram Brinkley. Judgment of nonsuit, and plaintiff appeals. Reversed.

Where one charged with the theft of ice cream while in charge of a church festival would be humiliated and isolated from her associates and acquaintances, she was entitled to recover special damages.

B. L Banks, Jr., of Gatesville, and Ward & Grimes, of Washington N. C., for appellant.

A. P Godwin, of Gatesville, and Ehringhaus & Small, of Elizabeth City, for appellee.

CLARK C.J.

This is an action for slander. It was alleged and in evidence that the defendant, in the presence of divers persons and at different times and places, used words to the effect that the plaintiff had stolen a gallon of ice cream. It was admitted that the ice cream was worth about $1. The plaintiff testified that such statement deeply humiliated her, and prevented her from wishing to go to church or anywhere else.

The court granted the defendant's motion to nonsuit upon the ground:

That "genuine humiliation of feelings is not an element of independent damage of itself, and therefore there was no special damage shown"; (2) that "under the act of 1913 (Pub. Laws 1913, c. 118) the larceny charged, being of less than $20, is not punishable in the penitentiary, and therefore not a felony, and it is not slander to charge one of an offense which is merely a misdemeanor."

It would be a very singular condition of the law if to charge one of stealing $19.99 is not slander, but to charge a theft of $20 would be. Such is not the case. To constitute slander it is not necessary that the offense charged should be a felony. "At common law and until the Act of 1891 conspiracy, and even such grave crimes as perjury and forgery, were misdemeanors" (State v. Mallett, 125 N.C. 723, 34 S.E. 651); and it was always libel or slander to charge falsely that one was guilty of perjury (25 Cyc. 305) or forgery (Id. 292). Laws 1891, c. 205, now Revisal, § 3291, providing that "a felony is a crime which is or may be punishable by either death or imprisonment in a state prison. Any other crime is a misdemeanor"--was for the purpose of settling the line between felonies and misdemeanors, but this did not prevent misdemeanors including cases where the offense was infamous; for Revisal, § 3293, specially provides for imprisonment in the county jail or state's prison on conviction of misdemeanor "if the offense be infamous." The line between felonies and misdemeanors has never been whether the offense is an infamous one or not. The line between them is now made by our statute to depend upon whether the offense is punishable by imprisonment in the penitentiary or capitally, in both cases the offense is a felony; otherwise it is a misdemeanor.

It is true it has been said rather loosely that an action for slander lies for "words falsely spoken which impute to the plaintiff the commission of a criminal offense involving moral turpitude, and which would subject him, if the charge be true, to an infamous punishment." We have already seen that under our statute misdemeanors for an infamous offense may be punished by imprisonment.

Besides, the definition is not correct. The general rule is:

"In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude or subject him to an infamous punishment, then the words will be in themselves actionable." 25 Cyc. 270, 272.

To charge one with larceny is to charge him with an offense involving moral turpitude.

Nor can we attach any importance to the defense set up that the charge of petty larceny, i. e., of goods less than $20 having been made petty larceny, cannot be an infamous offense because under the statute the recorder's court had jurisdiction of this offense. The jurisdiction of the recorder's court is bestowed by the Legislature under the authority of the Constitution (article 4, § 12), which provides that:

"The General Assembly shall allot and distribute that portion of this power and jurisdiction which does not pertain to the Supreme Court, among the other courts prescribed in this Constitution or which may be established by law, in such manner as * * * may be deemed best."

It has been held that the jurisdiction given the recorder's courts is not in violation of the right of trial by jury guaranteed by Const. art. 1, § 3, because that section provides that the Legislature may dispense with jury trials "for petty misdemeanors, with the right of appeal," and that for the same reason an indictment by a grand jury is not necessary. This court has repeatedly upheld the validity of such courts in State v. Shine, 149 N.C. 480, 62 S.E. 1080, State v. Doster, 157 N.C. 634, 73 S.E. 111, State v. Dunlap, 159 N.C. 491, 74 S.E. 626, and in other cases.

The test whether an action lies for slander is not whether the offense is triable in the superior court or the recorder's court or in a magistrate's court. It does not depend upon the offense being a felony or a misdemeanor. If the offense charged involves "moral turpitude," which is defined to be "an act of baseness, vileness, or depravity in the private and social duties that a man owes to his fellow man or to society in general, contrary to the accepted and customary rule of right and duty between man and man" (25 Cyc. 272), then such charge, if false, is ground for an action of slander if orally made, and for an indictment or action...