Williams v. Karnes

• Decision Date: 30 April 1843
• Citation: 23 Tenn. 9
• Parties: WILLIAMS v. KARNES.
• Court: Tennessee Supreme Court

23 Tenn. 9

WILLIAMS

v.KARNES.

Supreme Court of Tennessee.

April, 1843.

This is an action on the case for libel and slander, instituted in the circuit court of Gibson county, by Williams, against Karnes. The declaration contained two counts, one for libel and the other for slander. The defendant filed a general demurrer to the declaration; the demurrer was sustained, and judgment rendered for the defendant at March term, 1843. The plaintiff appealed.McLanahan, for plaintiff, relied on the following authorities: 1 Scott, 50, ch. 8, sec. 2; Hay. & Cobb. 253, sec. 67; 2 Humph. 512; 10 J. R. 447; 8 J. R. 455, Stark. on Slander, top page, 99 and 55, and authorities there cited.

A. W. O. Totten, for defendant, cited and commented on the following authorities: Act of 1741; Bill of Rights, sec. 14, 6; Archb. Cr. Law, 2; 1 Saund. 135, note 4; Com. Dig. title Indictment, Letter E.; 2 Bur. 803; 4 J. R. 191; 2 W. Bl. 750; 2 Sel. N. P. 43; 1 J. C. 129; 10 J. R. 447; 8 J. R. 455; 2 Humph. 512.

Reese, J., delivered the opinion of the court.

This is an action on the case for defamation. The declaration contains a count for words spoken, and also for the writing and publication of a libel. The defendant filed his demurrer to both counts of the declaration, and the demurrer was sustained by the judgment of the circuit court. To reverse this judgment the plaintiff has prosecuted his appeal in error to this court. The count for verbal slander alleges the defamatory words to have been as follows: “Joseph Williams altered the ear-mark of my hog from my mark to his, or procured it to be done.” The offence of “mismarking” is made punishable by the act of 1741 by a pecuniary penalty for the first conviction, and by stripes for the second. This offence is not comprised within our present criminal or penitentiary code, and by the act of 1741 the power of punishment appears to be given, not to the courts of record by indictment, but to a justice of the peace, and, therefore, inconsistent with our Constitution and Bill of Rights. For these reasons it is urged that the offence of “mismarking” is no longer indictable, or, if indictable, is not subjected to corporal or infamous punishment, and, therefore, that the imputation of the offence does not amount to verbal slander without the allegation and proof of special damage. And this, we think, is so, for the reasons stated. But, if this were otherwise, still the words charged as being defamatory, having no intrinsic or fixed meaning importing crime, it should have been shown by the colloquium or otherwise that the word “altered” imported that the plaintiff had the fraudulent purpose of depriving the defendant of his property and of appropriating it to himself. We are of opinion, therefore, that the demurrer was properly sustained to the count for verbal slander. The paper alleged to be a libel is as follows:

“May 28th, 1842. Notice. Tenn., Gibson county. I say to the people and the world at large that the Reverend Joseph Williams has been blowing and telling about through this country that he is going to sue me for killing one of my hogs, though my mark had been altered and made into...