Tilghman C. J.
This is an action of slander for calling the plaintiff a thief. The defendant pleaded not guilty, with leave to justify. Two exceptions are taken to the opinion of the judge, before whom the cause was tried. In the first place he charged the jury, that the plaintiff could not be guilty of felony, by taking a swarm of bees and their honey from the tree of another man, which the owner of the tree had reduced to possession, by confining them while in the top of the tree.
I believe there is no instance of a man’s being convicted of felony in Pennsylvania for an act of this kind. It is undoubtedly a wrong; but I am not for extending the law of felony farther than it has been carried, in a case which is not of an atrocious nature. The taking of wild bees, has been considered by the people of the country as a species of; hunting. Bees are of a wild nature; and without deciding j what the law might be, if they were removed from the tree, ! and secured in a hive, I am of opinion, that while they remain in the tree, they are not the subject of a felony.) This wild nature remains unchanged, nor are they completely, and for any valuable purpose, reduced to possession.
[550]*550The second and more difficult question is, whether the judge was right, in permitting-the plaintiff,to give in evidence, other words than those laid in the declaration, actionable in themselves, and spoken since the suit was brought. It must be considered as settled, that the plaintiff after proving the words laid in the declaration, may give in evidence other words, not actionable, by way of shewing the malice of the defendant. If it wej-e not so settled, I should very much doubt the propriety of such evidence, because it may take the defendant by surprise; nor does it seem clear, that the malice of thé defendant’s heart at the time of speaking the words for which the suit is brought, can be fairly inferred from words spoken at a subsequent time, no way relating to those which are the cause of action. But assuming it as I must do, as a principle, that subsequent words may be given in evidence, I can see no reason for a distinction between words actionable and not actionable, or between words spoken before suit brought, and words spoken after.
The subsequent words are received as evidence, only to shew the mind and intent of the defendant, when he spoke the words which are the cause of action; and the damages are or ought to be given solely on account of the words laid in the declaration. This should be explained to the jury by the judge who tried the cause; and if they do their duty, they will give no damages for any words but those in the. declaration. In this point of view, it can make no- manner of difference, whether the subsequent words are actionable or not, or at what time they were spoken, because no damages-are given for them. I confess there is danger, that in fact the jury may not confine themselves to their true line of duty, and for that and the reasons I have given before, if I considered myself at liberty, I would reject all evidence of this nature. But holding myself bound by for-met decisions, I must say that the evidence in this case was properly admitted.
Brackenridge J.
A principal ground for a new trial in this case is stated to be, that the judge charged thé jury, that if they were satisfied that it was usual in the country to suppose that the finder of a bee-tree might take the honey, [551]*551without being considered any thing more than a trespasser, it would weigh in favour of the plaintiff. It is impossible to' say that it would not weigh, if this way of thinking was correct. For in that case, it would be but an understanding of what was law. But it could weigh only in a moral point of view, and raise a presumption that he did not mean to commit a felony, or think that he was committing one. The popular understanding could only go to the quo animo with which he did the act. For a man committing a trespass, which in the popular opinion, and in his own, was a felony, might not be intitled to the same damages on being charged with felony, with one who thought it only a trespass as it really was. But if the taking the honey was actually a felony, the thinking it otherwise could not reduce it from a felony, and make it only a trespass. For even the understanding of a whole people contrary to the law, would not make it cease to be a crime. It is not in a criminal case that the maxim applies, communis error facit jus.
The direction of the judge can be considered incorrect, only in consideration that the taking honey under the circumstances of the case was a felony. For it is only in this point of view that it can affect the question of guilty or not guilty. Let us then consider the fact of taking honey from what is called a bee-tree at midnight, and with a disposition to conceal. The concealment may shew the animus furandi, or an intention to commit a felony; yet if a felony was not committed in the act, the intention, however it may be in a moral point of view, will not in law make it felony. The question then will be, whether the taking honey from a tree on the land of another, with an intention of concealment, will amount to felony. This must depend on the honey being the property of the owner of the land. If the bees are his property, the honey is; for it is the manufacture of his hive. It is the production of what may be called his flock. But this requires proof in the first instance, that the bees are his property. The treeing on his land may form some presumption of it; but this is not sufficient in a criminal case, when it is notorious in natural history, that there are wild bees, or bees ferce natures as is the learned phrase. Bees not reclaimed!' from their wild nature and domesticated, are not the subject [552]*552of property, any more than wild fowl, or wild It can"'not necessarily be inferred therefore, that the honey made in a tree on another’s land, is made by the bees of the owner of the land. But it may be made out of the vesture of his land, and therefore his property. “ The bee sits on the bloom “ extracting liquid sweetf and if the flowers are his, the honey is his property. For though it is changed by constipation, tcpurissima mella stipantf yet it is but the liquid condensed or thickened by working into honey; and the taking away butter is not the less a theft, because the taker had churned it from the milk of another. Here however a difficulty occurs; it may not have been the herbagium terree, the herbage of the owner of this land, from whence the liquid was extracted that was made into honey. Bees do not confine themselves to the fruits or flowers growing near, but move to a distance; “ Floriferis ut apes in saltibus omnia “ UbantF It cannot therefore be made out to a certainty that the honey has been made out of the grass, or vegetables, of the owner of the land on which the tree is.
This may seem an investigation to a minuteness partaking of the ridiculous. But it has not seemed to me possible to treat it otherwise. For though in tenui labor, yet the subtilty becomes necessary in order to discriminate. I have no idea that the understanding of the country could make it more or less a felony to take honey from the alveare, or to use the Anglo Saxon word, the skep
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Tilghman C. J.
This is an action of slander for calling the plaintiff a thief. The defendant pleaded not guilty, with leave to justify. Two exceptions are taken to the opinion of the judge, before whom the cause was tried. In the first place he charged the jury, that the plaintiff could not be guilty of felony, by taking a swarm of bees and their honey from the tree of another man, which the owner of the tree had reduced to possession, by confining them while in the top of the tree.
I believe there is no instance of a man’s being convicted of felony in Pennsylvania for an act of this kind. It is undoubtedly a wrong; but I am not for extending the law of felony farther than it has been carried, in a case which is not of an atrocious nature. The taking of wild bees, has been considered by the people of the country as a species of; hunting. Bees are of a wild nature; and without deciding j what the law might be, if they were removed from the tree, ! and secured in a hive, I am of opinion, that while they remain in the tree, they are not the subject of a felony.) This wild nature remains unchanged, nor are they completely, and for any valuable purpose, reduced to possession.
[550]*550The second and more difficult question is, whether the judge was right, in permitting-the plaintiff,to give in evidence, other words than those laid in the declaration, actionable in themselves, and spoken since the suit was brought. It must be considered as settled, that the plaintiff after proving the words laid in the declaration, may give in evidence other words, not actionable, by way of shewing the malice of the defendant. If it wej-e not so settled, I should very much doubt the propriety of such evidence, because it may take the defendant by surprise; nor does it seem clear, that the malice of thé defendant’s heart at the time of speaking the words for which the suit is brought, can be fairly inferred from words spoken at a subsequent time, no way relating to those which are the cause of action. But assuming it as I must do, as a principle, that subsequent words may be given in evidence, I can see no reason for a distinction between words actionable and not actionable, or between words spoken before suit brought, and words spoken after.
The subsequent words are received as evidence, only to shew the mind and intent of the defendant, when he spoke the words which are the cause of action; and the damages are or ought to be given solely on account of the words laid in the declaration. This should be explained to the jury by the judge who tried the cause; and if they do their duty, they will give no damages for any words but those in the. declaration. In this point of view, it can make no- manner of difference, whether the subsequent words are actionable or not, or at what time they were spoken, because no damages-are given for them. I confess there is danger, that in fact the jury may not confine themselves to their true line of duty, and for that and the reasons I have given before, if I considered myself at liberty, I would reject all evidence of this nature. But holding myself bound by for-met decisions, I must say that the evidence in this case was properly admitted.
Brackenridge J.
A principal ground for a new trial in this case is stated to be, that the judge charged thé jury, that if they were satisfied that it was usual in the country to suppose that the finder of a bee-tree might take the honey, [551]*551without being considered any thing more than a trespasser, it would weigh in favour of the plaintiff. It is impossible to' say that it would not weigh, if this way of thinking was correct. For in that case, it would be but an understanding of what was law. But it could weigh only in a moral point of view, and raise a presumption that he did not mean to commit a felony, or think that he was committing one. The popular understanding could only go to the quo animo with which he did the act. For a man committing a trespass, which in the popular opinion, and in his own, was a felony, might not be intitled to the same damages on being charged with felony, with one who thought it only a trespass as it really was. But if the taking the honey was actually a felony, the thinking it otherwise could not reduce it from a felony, and make it only a trespass. For even the understanding of a whole people contrary to the law, would not make it cease to be a crime. It is not in a criminal case that the maxim applies, communis error facit jus.
The direction of the judge can be considered incorrect, only in consideration that the taking honey under the circumstances of the case was a felony. For it is only in this point of view that it can affect the question of guilty or not guilty. Let us then consider the fact of taking honey from what is called a bee-tree at midnight, and with a disposition to conceal. The concealment may shew the animus furandi, or an intention to commit a felony; yet if a felony was not committed in the act, the intention, however it may be in a moral point of view, will not in law make it felony. The question then will be, whether the taking honey from a tree on the land of another, with an intention of concealment, will amount to felony. This must depend on the honey being the property of the owner of the land. If the bees are his property, the honey is; for it is the manufacture of his hive. It is the production of what may be called his flock. But this requires proof in the first instance, that the bees are his property. The treeing on his land may form some presumption of it; but this is not sufficient in a criminal case, when it is notorious in natural history, that there are wild bees, or bees ferce natures as is the learned phrase. Bees not reclaimed!' from their wild nature and domesticated, are not the subject [552]*552of property, any more than wild fowl, or wild It can"'not necessarily be inferred therefore, that the honey made in a tree on another’s land, is made by the bees of the owner of the land. But it may be made out of the vesture of his land, and therefore his property. “ The bee sits on the bloom “ extracting liquid sweetf and if the flowers are his, the honey is his property. For though it is changed by constipation, tcpurissima mella stipantf yet it is but the liquid condensed or thickened by working into honey; and the taking away butter is not the less a theft, because the taker had churned it from the milk of another. Here however a difficulty occurs; it may not have been the herbagium terree, the herbage of the owner of this land, from whence the liquid was extracted that was made into honey. Bees do not confine themselves to the fruits or flowers growing near, but move to a distance; “ Floriferis ut apes in saltibus omnia “ UbantF It cannot therefore be made out to a certainty that the honey has been made out of the grass, or vegetables, of the owner of the land on which the tree is.
This may seem an investigation to a minuteness partaking of the ridiculous. But it has not seemed to me possible to treat it otherwise. For though in tenui labor, yet the subtilty becomes necessary in order to discriminate. I have no idea that the understanding of the country could make it more or less a felony to take honey from the alveare, or to use the Anglo Saxon word, the skep of a bee-tree on another man’s land; yet it does not follow, that it cannot be considered but a felony; and this I take it is the objection to the charge of the judge, that it did not depend upon the understanding of the country whether it was felony or otherwise, but upon the common law, by which it did not necessarily follow that it was felony.
My idea of the common law, in this particular, is deduced from principle; and is the same with that of the Roman civil law. “ Apium quoque fera natura est. Itaque quae in arbore “ tua consederint, antequam a te álveo includantur, non magis “ tuae intelliguntur esse, quam valueres quae in arbore tua ni- “ dum fecerint. Ideoque si alius eas incluserit,is earum domi- “ ñus erit. Favos quoque, si quos effecerint, eximere quilibet [553]*553“ potest. Plane integra re, si prsevideris ingredientem fun- “ dum tuum, poteris eum jure prohibere ne ingrediatur.”
Aldobrand in-his flote- on this-, thinks that the occupancy, by being in the tree on the land of another, gave a property. “ Dominus Jit per occupatio?iem.,’> But I incline to think that such occupancy does not give a property. A trespass would be committed in coming upon the land to take the bees or combs in this case, but not in taking the bees or combs would there be a trespass, if they could be taken without coming on the land, much less a felony. It is the same as with wild fowl who have been brooded and are roosting upon the land, which if they could be taken without ingress, there would be not even a trespass.
Another objection to the charge of the judge, has more solidity; or rather, I mean to say, is more difficult to remove. It is, that evidence was admitted, though objected to,of words spoken since the bringing the action, that are in themselves actionable; words to the same effect with those laid in the declaration, but spoken after suit brought. I take it they might be given in evidence to repel an allegation of having been originally spoken -without malice, if that were the defence that were set up. But whether they can be given in aggravation of the malice, is more difficult to support. Defamatory words imply malice; but accompanied with words indicating ill will, whether at the time of speaking, or at any other time, may be evidence of actual malice, which aggravates the wrong of speaking; more especially on the plea of non cul, which goes to the malice with which the words are spoken, as well as to the speaking of the words. Hence it is, that evidence of an acknowledgment made after suit brought of having spoken the words, would be evidence of the speaking; and the speaking the same words after suit brought, would raise a presumption in support of what was alleged, that such words had been spoken before suit brought; and on the same principle, would raise a presumption that they had been spoken maliciously.
There is nothing in the argument from the statute of limitations; for the words laid in the declaration must be proved to have been spoken within the year, before evidence can be given of any spoken after suit brought. But it may be [554]*554said with more solidity, that the giving evidence of words spoken after the suit brought, and the recovery on the aggravation of them, cannot be pleaded in bar to a new action for the same words, if actionable. I do not see but that the special matter might be pleaded, and given in evidence. It would prevent the multiplying of suits, embracing all that preceded the trial, subject only to this consideration, that the defendant is not taken by surprise, as to any evidence offered.
In trespass real, and in nusance, the continuance is not admissible in evidence, in aggravation; but a new action must be brought on the continuance; and so to ties quoties. But there is a difference; for in these cases the quo animo is not the gist of the offence, nor does the allegation depend so much upon the conception and memory of witnesses, or general disposition of the alleged wrong-doer towards him. that is wronged, as on the mere matter of fact, the thing being done, the only qualification of which can be voluntary or involuntary, with regard to the damage; though I do not see the inconvenience of proving damages even up to the lime of trial in the case of trespass real, or nusance, as the jury computes interest on a bond up to the time of trial, under the head of damages, and the court will give judgment; unless perhaps the preserving the separation and simplicity of cause of action, and confining the demand, have the superior advantage.
In the case of a personal trespass, assault and battery, evidence of what has taken place since the suit brought, may be given in evidence to increase the damages, such as debility or the losing the use of a limb. This as shewing the extent of the trespass laid in the declaration. On the same principle, in slander, where the per quod or special damage is the gist of the action, the effect may be shewn by what has been consequent to the suit brought, provided a special damage has been proved sufficient to support the action. It is not therefore correct to say, that in all cases no evidence can be given that has relation to a fact after suit brought, and before trial. In Buller N. P. 7. it is said, that though he (the plaintiff) “ cannot give evidence of any loss “ or injury not laid in the declaration, yet after he has proved “ the words as laid, he may give evidence of other expres[555]*555“sions made use of by the defendant, as a proof of his ill “ will towards him.” This in the reason of it goes to words spoken after suit brought, as well as before; and I can draw no distinction between words actionable and not, as to the admissibility, but áfortiori as to the effect; and by pleading or averment, the having been given in evidence may be shewn, should another action be brought on the ground of speaking these.
New trial refused, and Judgment confirmed.
For cases on the first point, see Charlter v. Barret, Peake's N. P. Cases, 22., The King v. Pearce, ib. 75., Mead v. Daubigny, ib. 125., Lee v. Huson, ib. 166.
For the second point, see 2 Bl. Comm. 392., Bro. Abr. title Property 37.