The opinion
Ruffin, J.
We fully concur in the opinion expressed by His Honor, that the matter contained in the card and copied into the indictment, is libellous in its nature.
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Its tendency to degrade the prosecutor and render him odious, is patent; and therein it comes-fully up to the requirements laid down by the authors when defining the offence of -libel. Sterner rules are applied to written or printed defamation than to verbal slander, because of the deliberation with which it is perpetrated, and the more permanent and extended consequences attending it.
But it is needless to elaborate this part of the case, since according to our law, an error was committed with reference to the evidence offered and received in support of the second specification, such as entitles the defendant to a trial by another jury.
As contained in that part of the card, the words are as follows: “That which made P. C. Henkel depose falsely on the witness stand at Hickory is the cause of
all this muss,”
&c. As set out in the indictment, they are the same, except that the word
“ all ”
preceding the words
“ this muss,”
is omitted.
According to the current of authorities, beginning with the oldest and extending to the latest, and almost wholly unbroken,
libel
belongs to that class of cases, in which it is held to be absolutely necessary to set out in the indictment the alleged libellous matter
according to its tenor. Rex
v.
Burr,
12 Mod., 218;
Wood
v.
Brown,
6 Taunt., 168; 1 Russell, 352; 2 Bish. Cr. Pro., § 744;
State
v.
Sweeny,
10 Sergt. & R., 173;
State
v.
Wright,
1 Cush., 46 ;
State
v.
Brownlow,
7 Hump., 63;
Whitaker
v.
Freeman,
1 Dev., 271 . The reason given for this is, that the court may -be able, from an exact knowledge of the contents of the publication as seen in the record, to form its judgment thereon ; and that the accused may, if he please, demur, and thus have the opinion of .the court, as a question of law, upon the sufficiency of the matter to constitute libel, and thereby avoid submitting it as a mixed question to thé jury.
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Whenever necessary to be- set out in the indictment, the' law, to be consistent, must require it to be proved as-charged. ’Tis needless to cite authorities for. this, or refer to the many cases in which slight variances have been held by .the courts to be fatal, as they are all to be found in the test books, and must be familiar.
An unmistakable principle which runs through them all is, that while the misuse or omission of a letter, which works no such change in a word as to make of it a different one, will not be treated as a fatal variance, still,
tenor
imports
identity,
and whenever that is destroyed, either by the omission or adoption of any one word, however slightly the sense may be affected, it will be so regarded.
We are fully sensible of the fact that this strictness of pleading in criminal matters has given-rise to much criticism, as having a tendency to obstruct t;he course of public justice, and we would gladly avoid it in this case if we could. But it is the duty of the-courts to administer the law as they find it, and' not to amend it. We have no more right to depart- from this well established principle, technical though it may be, than from any other well recognized rule of law. Nor are we sure but that, at last, it is the only safe rule to pursue. To admit the substance, only, to be alleged and proved in such cases, would be to open a wide door to conjecture on the part of .those,-upon whom the duty should devolve of determining when
the substance
had been sufficiently maintained; and soon one deviation from exactness would- beget another, until finally all certainty, at which the law wisely aims and which is so iriii-peratively demanded for the safety of the- citizen, would be completely lost. The most that can.be said against the rule is, that it imposes upon the pleader the exercise of just so much care and circumspection as may be necessary to insure exactness; and surely.that can be no good reason for
*680
dispensing with it altogether, at the risk of introducing uncertainty into the administration of the law itself. .
The judgment of the court below is reversed and a
venire de novo
awarded.
Error.
Veiiire de novo.