Bleckley, Chief Justice.
This is the second appearance of the same case, the first being in 80 Ga. 479. At successive trials two verdicts, each for $1,500 damages, were found for Fox, the plaintiff below. From the first a new trial was granted by this court, for error in instructions to the jury. A second new trial was applied for by Henderson, [241]*241and to the refusal of that application the present writ of error was brought. The declaration was in three counts. The first charged the speaking on the first of March, 1886, of these slanderous words : “He is a thief and ought to be in the penitentiary.” The second charged the speaking on the 22d -of December, 1886, of these slanderous words : “That damn scouúdrel Fox, be is going to run ; he ought to be in the penitentiary ; if I had taken the advice of my friends, he would be there instead of running for coroner.” The third charged the speaking on the 6th of January, 1887, of these slanderous words: “He is a damn thief; he ought to be in the penitentiary.”
The defendant, Henderson, pleaded (1) the general issue; (2) justification ; (3 and 4) set-off, one of the pleas of set-off alleging slander, and the other assault and battery. The plea of justification consisted, first, of a long-enumeration of particular facts relating to certain co-partnership transactions between the parties, and to-certain acts of Fox with reference to the partnership assets; false entries in the hooks; omissions to make; entries, etc., etc.; the plea concluding as follows :
“And this defendant says that the words charged against him were-only spoken in reference to his business matters between them as. partners. He admits that he said the plaintiff was a thief and oughfc to have been in the penitentiary, but denies that they were uttered! falsely or maliciously; and that whatever he may have spoken at any time was without malice and Under an honest belief that he had been wronged by the plaintiff; and wherefore the defendant says that he might lawfully have spoken as aforesaid for the cause aforesaid.”
The plea was not restricted in its terms to any one count or any one part of the declaration. It was not demurred to. At the trial the defendant took the opening and conclusion as to the whole ease, and the record indicates that the plea was considered an answer to the whole action.
1. The charge of the court is complained of in the motion for a new trial as expressing or intimating an [242]*242opinion on the evidence, or touching the facts in controversy. We think it amenable to no such criticism. Taking the whole charge together as found in the record, it not only separates, clearly and distinctly, the functions of the jury from those of the court, but is extremely careful not to encroach in any manner upon the province of the jury. In this respect we consider it remarkably free from any ground of exception whatever.
2. The legal doctrine that a plea of justification going to the whole case waives the plea of the general issue, is now well-established as the rule in Georgia under the code. Rigden v. Jordan, 81 Ga. 668 ; Parker v. Lanier, 82 Ga. 216.
3. However loose and informal the plea of justification may be, when it is not demurred to but is considered by the parties and the court as a sufficient plea of that character, and a trial is had under it, defects in are not to be scrutinized after the trial is over; indeed it has been held that where the parties treat it as sufficient, the trial court should do so likewise. Bryan v. Gurr, 27 Ga. 378.
The necessary legal effect of every strict plea of justification in actions of slander not involving privileged communications, is to reaffirm the- charge or charges justified, and aver the truth of the words spoken'if they impute a crime punishable by law. Such reaffirmation may or may not be an aggravation of the original slander. Whether it is so or not is to be determined by the jury. Where the plea is filed in good faith, and under an honest expectation of being able to establish the allegedjustification, the jury should consider it warranted, and add nothing to the damages on account of it, although the proof should fall short of establishing it. On the other hand, if they should believe it unwarranted and unfounded, they ought to treat it as an aggravation and as cause for augmenting the damages. [243]*243Unless proved to the satisfaction of the jury, such a plea cannot and will not defeat the action ; but there may be evidence under it which, though insufficient to establish it, may disclose facts and circumstances in mitigation, and this may be considered by the jury to reduce in any degree they deem proper the amount of damages they would otherwise have found. Thus a plea of justification may, according to the evidence introduced under it, have one of three effects in the action : (1) the plea being established, the action is simply defeated ; (2) failure to establish it, connected with failure to show any reasonable or proper cause for filing it, may aggravate the damages ; (3) the partial or imperfect establishment of it, or the production of evidence strongly tending to establish it, may mitigate the damages. Whilst only one of these effects can be realized in the same case, there is no inconsistency amongst them as referable to different cases, or cases of different classes, the classification being made by the jury according to the facts of the case on trial. The charge of the court complained of, construed in the light of the whole charge, was substantially in accordance with this view of the law. We think the jury could not have understood it as constraining them to treat the plea of justification as an aggravation, but simply as authorizing them so to do if they thought proper under the evidence; and certainly the charge very distinctly announced that the facts proved under the plea might be looked to in mitigation of the damages, although they fall short or might fall short of establishing full justification. Nightly construed, although some criticism may be made on isolated passages, the charge, we think, conforms substantially to the case of Ransone v. Christian, 49 Ga. 491.
4. With respect to defeating the action wholly and entirely by evidence going to negative malice, we think [244]*244there is no soundness whatever in the position as applied to a case like this, where the words impute a crime, and where no element of privileged communication is involved. We think all the cases of any authority hold that such words must be made good by proving their truth, or else there must be a recovery of some damages in favor of the plaintiff. By an examination of Lewis v. Herrick, 16 N. Y. 369, and of Wilson v. Noonan, 35 Wis. 321, cited by Mr. Freeman in his notes to Terwilliger v. Wands, 72 Am. Decis. 430, it will be found that these cases have in them nothing to the contrary of this doctrine, but that the latter distinctly recognizes it, and the former does not discuss it.
5. Looking to the evidence, the charge of the court as given, and the explanation by the judge in his order denying a new trial, we are unable to hold that there was any matérial error in declining to charge the jury as requested in addition to the charge given. It seems to us that the case was fully and fairly submitted to the jury on its substantial merits.
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Bleckley, Chief Justice.
This is the second appearance of the same case, the first being in 80 Ga. 479. At successive trials two verdicts, each for $1,500 damages, were found for Fox, the plaintiff below. From the first a new trial was granted by this court, for error in instructions to the jury. A second new trial was applied for by Henderson, [241]*241and to the refusal of that application the present writ of error was brought. The declaration was in three counts. The first charged the speaking on the first of March, 1886, of these slanderous words : “He is a thief and ought to be in the penitentiary.” The second charged the speaking on the 22d -of December, 1886, of these slanderous words : “That damn scouúdrel Fox, be is going to run ; he ought to be in the penitentiary ; if I had taken the advice of my friends, he would be there instead of running for coroner.” The third charged the speaking on the 6th of January, 1887, of these slanderous words: “He is a damn thief; he ought to be in the penitentiary.”
The defendant, Henderson, pleaded (1) the general issue; (2) justification ; (3 and 4) set-off, one of the pleas of set-off alleging slander, and the other assault and battery. The plea of justification consisted, first, of a long-enumeration of particular facts relating to certain co-partnership transactions between the parties, and to-certain acts of Fox with reference to the partnership assets; false entries in the hooks; omissions to make; entries, etc., etc.; the plea concluding as follows :
“And this defendant says that the words charged against him were-only spoken in reference to his business matters between them as. partners. He admits that he said the plaintiff was a thief and oughfc to have been in the penitentiary, but denies that they were uttered! falsely or maliciously; and that whatever he may have spoken at any time was without malice and Under an honest belief that he had been wronged by the plaintiff; and wherefore the defendant says that he might lawfully have spoken as aforesaid for the cause aforesaid.”
The plea was not restricted in its terms to any one count or any one part of the declaration. It was not demurred to. At the trial the defendant took the opening and conclusion as to the whole ease, and the record indicates that the plea was considered an answer to the whole action.
1. The charge of the court is complained of in the motion for a new trial as expressing or intimating an [242]*242opinion on the evidence, or touching the facts in controversy. We think it amenable to no such criticism. Taking the whole charge together as found in the record, it not only separates, clearly and distinctly, the functions of the jury from those of the court, but is extremely careful not to encroach in any manner upon the province of the jury. In this respect we consider it remarkably free from any ground of exception whatever.
2. The legal doctrine that a plea of justification going to the whole case waives the plea of the general issue, is now well-established as the rule in Georgia under the code. Rigden v. Jordan, 81 Ga. 668 ; Parker v. Lanier, 82 Ga. 216.
3. However loose and informal the plea of justification may be, when it is not demurred to but is considered by the parties and the court as a sufficient plea of that character, and a trial is had under it, defects in are not to be scrutinized after the trial is over; indeed it has been held that where the parties treat it as sufficient, the trial court should do so likewise. Bryan v. Gurr, 27 Ga. 378.
The necessary legal effect of every strict plea of justification in actions of slander not involving privileged communications, is to reaffirm the- charge or charges justified, and aver the truth of the words spoken'if they impute a crime punishable by law. Such reaffirmation may or may not be an aggravation of the original slander. Whether it is so or not is to be determined by the jury. Where the plea is filed in good faith, and under an honest expectation of being able to establish the allegedjustification, the jury should consider it warranted, and add nothing to the damages on account of it, although the proof should fall short of establishing it. On the other hand, if they should believe it unwarranted and unfounded, they ought to treat it as an aggravation and as cause for augmenting the damages. [243]*243Unless proved to the satisfaction of the jury, such a plea cannot and will not defeat the action ; but there may be evidence under it which, though insufficient to establish it, may disclose facts and circumstances in mitigation, and this may be considered by the jury to reduce in any degree they deem proper the amount of damages they would otherwise have found. Thus a plea of justification may, according to the evidence introduced under it, have one of three effects in the action : (1) the plea being established, the action is simply defeated ; (2) failure to establish it, connected with failure to show any reasonable or proper cause for filing it, may aggravate the damages ; (3) the partial or imperfect establishment of it, or the production of evidence strongly tending to establish it, may mitigate the damages. Whilst only one of these effects can be realized in the same case, there is no inconsistency amongst them as referable to different cases, or cases of different classes, the classification being made by the jury according to the facts of the case on trial. The charge of the court complained of, construed in the light of the whole charge, was substantially in accordance with this view of the law. We think the jury could not have understood it as constraining them to treat the plea of justification as an aggravation, but simply as authorizing them so to do if they thought proper under the evidence; and certainly the charge very distinctly announced that the facts proved under the plea might be looked to in mitigation of the damages, although they fall short or might fall short of establishing full justification. Nightly construed, although some criticism may be made on isolated passages, the charge, we think, conforms substantially to the case of Ransone v. Christian, 49 Ga. 491.
4. With respect to defeating the action wholly and entirely by evidence going to negative malice, we think [244]*244there is no soundness whatever in the position as applied to a case like this, where the words impute a crime, and where no element of privileged communication is involved. We think all the cases of any authority hold that such words must be made good by proving their truth, or else there must be a recovery of some damages in favor of the plaintiff. By an examination of Lewis v. Herrick, 16 N. Y. 369, and of Wilson v. Noonan, 35 Wis. 321, cited by Mr. Freeman in his notes to Terwilliger v. Wands, 72 Am. Decis. 430, it will be found that these cases have in them nothing to the contrary of this doctrine, but that the latter distinctly recognizes it, and the former does not discuss it.
5. Looking to the evidence, the charge of the court as given, and the explanation by the judge in his order denying a new trial, we are unable to hold that there was any matérial error in declining to charge the jury as requested in addition to the charge given. It seems to us that the case was fully and fairly submitted to the jury on its substantial merits. No doubt the charge was in some respects imperfeet, and no doubt any review of it which we might attempt would be imperfect also, for what earthly court can attain perfection ? But slight blemishes ill the work of a court are not to be regarded as cause for a new trial, and so far as we can discover, nothing material was done or omitted to the prejudice of the plaintiff in error.
6. We know of no law applicable to Georgia practice which constrained the court to instruct the jury that they might find a special verdict in an ordinary action at law, as this was. We were cited to no precedent on the subject, and had the instruction been given, wé should have had more difficulty in upholding it than we meet in sustaining the refusal of the court to give the instruction. There is no air of novelty about the ruling which the court made, as there certainly would have been if a reverse holding had taken place.
[245]*2457. That causes of challenge to jurors propter defectum must be discovered and urged before trial, and that improper language or conduct attributed to a juror, proved by one witness only, and which he denies on oath, is not cause for a new trial, will be recognized as law by most of the enlightened members of the legal profession. Those not prepared for concurrence in the common opinion will become so by further study.
8. Touching the general grounds of a motion for a new trial, and the special ground that the damages found are excessive, we need only say that the evidence is not such as to warrant our interference, this being a second verdict and the trial judge being satisfied to let it stand. We consider it a harsh verdict, in view of the many palliating facts set forth in the evidence, but not an illegal one. It teaches a most energetic lesson in favor of holding one’s tongue, and it is well for that lesson to be learned, sooner or later, by us all. We are not without sincere sympathy for this aged and irascible man, but our duty is best performed by leaving his case to stand as the jury and the presiding judge have settled it. Judgment affirmed.