Phillips v. Barber

7 Wend. 439

• Court: New York Supreme Court
• Decided: October 15, 1831
• Status: Published

Opinion

By the Court,

Nelson, J.

We perceive no objection to the charge of the judge, or any essential difference, in principle, between the law as laid down by him and that which was insisted on by the counsel for the defendant. The words were actionable in themselves, and would only be deprived of that character by an explanation by the defendant at the time, shewing to the hearers that he did not intend a charge of larceny . It of course is not necessary that the [explanation should be made by the defendant at the time of speaking the words, if all the hearers are in possession of the facts alluded to when the words are spoken, because this would be sacrificing to the terms of the rule its substance and meaning. It is enough that the hearers understood at the time to what the defendant re-referred, and that such reference gave to the words an innocent meaning. The case states that the witnesses who proved the charge, all stated that it referred to the taking of the wood of the defendant by the plaintiff, (which, as detailed in the case, was an innocent transaction,) and that they so understood the charge at the time it was made. Whether the explanation as to the taking of the wood was made at the time of the charge by the defendant, or whether the witnesses understood the transaction from some other source, and at some other time, does not appear. If they did not obtain the explanation at the time, but understood it in some other way, though they were in possession of facts which gave the words an innocent meaning, others present might not be; and it is fairly to be inferred from this case that others were present. It appears that after the defendant knew that the plaintiff had taken the wood through mistake, believing he had bought it, he persisted in making the charge of stealing, and did make the one complained of, clearly intending to deny the explanation given, and to characterise it as a felony, and in relation to a transaction which was a subject of felony. The case, we think, was fairly submitted to the jury, and there is no cause for disturbing the verdict.

New trial denied.