that the plaintiff had in fact not committed the crime of larceny, nor been guilty even of a trespass. "It is actionable per se to charge a person with having committed a crime, even though such crime has not been committed, if the hearers of the slander do not know that circumstance." 18 Am. & Eng. Ency. Law (2d ed.), 874. It results that the affirmative charge requested by the defendant was properly refused. . . . There is no error in the record, and the judgment is affirmed. Affirmed. 166. ROCKY MOUNTAIN NEWS PRINTING COMPANY v. SMYTH SUPREME COURT OF COLORADO. 1909 46 Colo. 440, 104 Pac. 956 APPEAL from District Court, City and County of Denver; P. L. Palmer, Judge. Action by Isolde Smyth, by Florence C. Smyth, her next friend, against the Rocky Mountain News Printing Company. Judgment for plaintiff, and defendant appeals. Reversed. The complaint alleges: That the plaintiff is unmarried, and of the age of seventeen years. That the defendant corporation, is the publisher of the Rocky Mountain News, a newspaper of large circulation. That in said newspaper on July 24, 1902, the defendant maliciously published of and concerning the plaintiff the following false and defamatory article, to wit: "Miss Smyth a Mother." "Isolde Smyth, the girl who was assaulted by an unknown man in North Denver last New Year's eve, became a mother yesterday." That by reason of said publication, plaintiff was damaged in the sum of $10,000, for which sum judgment is prayed. The defendant's answer admits that the defendant owned the paper mentioned, that it had the circulation alleged, and that it published the article as set forth in the complaint. The answer continues as follows: "Third. It denies that the defendant published said article maliciously, and denies that it was a libel, and denies that it was defamatory, and denies that it was a false article, but admits that that portion of the article which states that the plaintiff became a mother was incorrect, and admits that the said plaintiff did not and has not become a mother, or given birth to a child, and alleges that that portion of the article which states that the plaintiff was assaulted by an unknown man in North Denver last New Year's eve was true and correct, [and that the plaintiff was, on or about said date, criminally assaulted by an unknown man in North Denver. And the defendant alleges that on or about said date the plaintiff reported to the officers of the law that she had been criminally assaulted by an unknown man and outraged; that said attack upon her created great excitement in the city and State; that numbers of men were, from time to time, arrested upon said charge, and the occurrence attracted great attention to the plaintiff; that thereafter and on, to wit, the 23d day of July, 1902, it was reported to said newspaper, by what was by the said newspaper upon reasonable grounds believed to be reliable authority, that the plaintiff had become a mother, and believing the same to be true, and without any malice whatever, and with the motive only of publishing the news, the said article was published; that said article was not published in any conspicuous or prominent place in said paper,] and on the following day, upon learning that said statement was not correct, there was published in the regular edition of said paper the statement that the report that plaintiff had become a mother was wholly groundless; [that none of the owners of said paper or of said company knew of the article.] "Fourth. Denies each and every other allegation in the complaint contained, not hereinbefore admitted or denied. "And for a second and further answer and defence defendant says: That on, to wit, the evening of the 31st day of December, 1901, the plaintiff, who at that time was sixteen years of age and over, with her brother, Smyth, had repaired to a lonely lake in or near North Denver, in the county aforesaid, to engage in the pastime of skating. That she and her brother were then and there approached by a man apparently twenty-one years of age and over, but to the plaintiff and defendant unknown, who did then and there order the plaintiff and her brother to lie down upon the ground where she and her brother were. That the brother, anticipating that the person so commanding intended to assault and ravish his sister, resisted, upon which the said ruffian struck him with an axe and killed him. That there and immediately thereafter the said assailant seized and choked the said plaintiff 'into insensibility, and did there and then, notwithstanding the resistance of plaintiff, as defendant is informed and believes, assault and ravish and carnally know the said plaintiff. That immediately, and upon the day following the said murder and criminal assault, and for many days thereafter, the daily newspapers printed and published in the city of Denver, in the county aforesaid, to wit, the Rocky Mountain News, the Denver Post, the Denver Times, and the Denver Republican, did contain full, complete, and extended notices of said murder and assault, many columns of said paper being filled with the accounts of the same, and the crime charged in said newspaper articles against the said murderer and assailant of plaintiff was that he had feloniously killed and murdered plaintiff's said brother and thereupon had choked plaintiff into insensibility and did then and there criminally assault said plaintiff, meaning thereby that he had criminally assaulted her, and had carnal knowledge of her against her will. That these statements in the said newspapers were widely and generally read, and, as defendant is informed and believes, were without exception accepted and regarded as true, and they aroused great ire and indignation against the perpetrator of the crime, for the said plaintiff was a pure and virtuous girl, and beloved and respected by all her friends and acquaintances, and the said brother was a valiant and manly boy, and was killed because of his attempted defence of his sister's (plaintiff's) honor. That the publication in the Rocky Mountain News complained of was printed and published without any malice or ill will whatsoever. That the defendant had at all times sympathized with the plaintiff on account of the outrage aforesaid, and by reason of her youth and good character, and had in the newspaper published by it so expressed its feelings in the strongest and plainest language that it could employ. That the statement in the publication complained of had reference solely to the outrage aforesaid perpetrated upon plaintiff, and though, as defendant subsequently learned, the statement that she had become a mother was untrue, it was published upon an honest belief that it was true, the same having been prepared for publication by a reporter, an employee of the defendant, who theretofore had been reliable, conservative, and trustworthy in his statements of the news he gathered for publication, and had been instructed by defendant to report as news only that which he found to be true. That the publication aforesaid was intended to carry with it, and did in fact carry, the information that the plaintiff became a mother as the result of the outrage aforesaid committed upon her person, and the carnal knowledge which, as affiant is informed and believes, the perpetrator of the outrage had of the plaintiff at the time of the said assault; and defendant avers that such was the sole and only view taken of said publication by those who knew the plaintiff or had heard or read of the criminal assault aforesaid. And defendant avers that the said publication by reason of the facts aforesaid in no manner charged or implied any want of chastity upon the part of plaintiff. That, while the said publication was untrue as aforesaid, the same, by reason of the facts aforesaid, was not defamatory or libellous, and it in no wise caused her to lose her reputation for virtue and chastity, and defendant denies that the publication defamed the plaintiff in any way or brought her into disrepute, socially or morally, and it denies that it damaged her in the sum of $10,000 or any other sum." The plaintiff filed a motion to strike out those parts of the third paragraph of the answer appearing above in italics [brackets], and also demurred to all that portion of the answer beginning with the words, "And, for a second and further answer and defence, defendant says." The motion to strike and the demurrer were both sustained, and thereupon replication filed. The issues being thus made, the cause was tried to a jury, resulting in a verdict for plaintiff, who is appellee here. The defendant thereupon filed a motion for a new trial, which being overruled judgment was entered on the verdict, and the case brought here for review. Thos. M. Patterson and Richardson & Hawkins, for appellant. WHITE, J. (after stating the facts as above). The appellant contends that the judgment should be reversed for various reasons, but we deem it necessary to consider only those relating to the action of the Court in sustaining the demurrer to the second defence, and the striking out certain parts of defendant's answer. The demurrer to the second defence was based upon the ground that it did not state facts sufficient to constitute a defence, and that the matters therein set forth were immaterial and irrelevant. Directing our attention to the defence demurred to, we find that, while some of the allegations therein are legal conclusions, others are clearly well plead, and as to such the demurrer confessed their truth, and the ruling of the Court thereon deprived the defendant of the right to show to the jury what the facts of the case were, how the publication came to be made, the way it was intended, and was understood by the readers of the paper. These, we think, the defendant had a right to bring before the jury, and it was error to limit the pleadings in that respect. Libel is defined by Mills' Ann. St. § 1313, as follows: "A libel is a malicious defamation expressed either by printing, or by signs, or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him or her to public hatred, contempt or ridicule.” . . The article under consideration, in order to be libellous, must also impeach the virtue of the plaintiff. Every false article is not an actionable libel, just as every untruth is not a lie. To be an actionable libel, the elements to make it such must be present in the article itself, or fairly implied therefrom and the circumstances surrounding its publication. So, if the elements that constitute libel are clearly expressed in the article, it is actionable per se, and becomes conclusive upon the publisher, unless, under the circumstances, the words used were fairly capable of being understood in a special sense, rendering them not defamatory, and that they were so understood. The intent of the publisher and the effect of the publication must be gathered from the words and the circumstances under which they were uttered, and the publisher is prima facie presumed to have used them in the sense which their use is calculated to convey to the minds of the readers of the publication. When so construed, the words may be defamatory on their face, in which case the action may be maintained, unless the defendant can, and does, allege and prove that under the circumstances they were fairly capable of being understood in a special sense, rendering them not defamatory, and that they were so understood. Or they may not be defamatory on their face, in which case the action cannot be maintained, unless the plaintiff can and does show that they were, under the particular circumstances, fairly capable of a special meaning rendering them defamatory, and that they were so understood. . . It is clearly a question of law for the Court to determine whether or not words constituting an alleged libel, and which are actionable per se, are capable of having the special meaning claimed by a defendant, and, when the Court holds that words ordinarily actionable per se may nevertheless under the circumstances of a particular case have such special meaning, then it becomes a question of fact, to be determined by the jury, as to what the real meaning is, and how the words were understood. To illustrate these principles we adopt the example suggested by counsel. The wife of A is despondent because her husband neglects her, and commits suicide. These facts are well known to the public generally. B thereupon, while the matter is fresh in the minds of the people, publishes of A that he murdered his wife. A sues B for libel, alleging that B accused him of having committed murder. B answers that, while the language used would ordinarily mean what A claims, yet, under the circumstances of the accusation, the real meaning was that A's absence from home and neglect of his wife so preyed upon her mind that she killed herself, and that the readers of the publication so understood the charge. Under these circumstances, the Court certainly would have no right to sustain a demurrer to the answer, and to hold that the publication means that plaintiff was guilty of homicide. Under such circumstances, it would be for the jury to determine whether or not the publishers intended, and the readers did or did not understand, the language used to mean as contended by defendant. It is certainly libellous prima facie to say of an unmarried woman that she has become a mother, for such words ordinarily imply the want of chastity, and brings the case clearly within the statutory definition of libel. Almost without exception, such a charge carries with it the imputation that the female is guilty of fornication is lacking in virtue; but we are of the opinion that this does not necessarily follow. To say of an unmarried female, who has been carnally known against her will, that she has become a mother, does not necessarily charge her with unchastity or impeach her virtue. It is not a certain accusation of unlawful or illicit intercourse on her part. It does not necessarily mean that she is guilty of fornication or any wrong. It may mean only that mysterious nature has taken its course in that process by which the human race is propagated and continued. An unmarried female may become a mother and still be virtuous. Such an one, who has been carnally known against her will, and as a result thereof becomes a mother, has not thereby lost her virtue nor her chastity. She may, notwithstanding the outrage committed upon her, be of unspotted purity. The child in her arms is not the result of her own evil. Marian Erle in "Aurora Leigh" expresses this thought when, with her babe she in her arms, says: "Man's violence, Not man's seduction, made me what I am." The sustaining of the demurrer and the striking of portions of the answer by the trial Court are so at variance with our view of the law applicable to this case, that the judgment must be, and accordingly is, reversed. STEELE, C. J., and BAILEY, J., concur.1 1 [PROBLEMS : Judgment reversed. A letter is sent in an unsealed envelope. Is there a publication, as to other than the sendee? (1895, Fry v. McCord, 95 Tenn. 678, 33 S. W. 568.) A libellous letter is handed to a clerk to copy in the blotter-press. Is there a publication? (1894, State v. McIntire, 115 N. C. 769, 20 S. E. 721; 1907, Western Union Tel. Co. v. Cashman, C. C. A., 149 Fed. 367.) When a slander is uttered in Italian, and the declaration contains the Italian |