128 Mich. 641 | Mich. | 1901
The defendant has appealed from a verdict and judgment for $320 in an action for slander and malicious prosecution. The three counts for slander are substantially alike, and the following-quotation from the first will serve to make plain the rulings and points raised thereon:
“ * * * say of and concerning this plaintiff, in the presence and hearing of this plaintiff, Charles S. Fuller, and other divers good and worthy citizens of the State of Michigan, did speak, publish, and declare of and concerning said plaintiff the following false, malicious, and defamatory words, to wit: ‘McLeod stole it;’ meaning and referring fo this plaintiff, and meaning and intending to charge this plaintiff with having stolen certain property belonging to George Collin Company, a corporation organized under the laws of this State, of which the said James S. Crosby was president, and meaning and intending to charge, and give the persons who heard him to understand, that the said plaintiff had been guilty of the crime of larceny, and was a thief; that, at the time the said defendant uttered the aforesaid false, slanderous, malicious, and defamatory words, he had been claiming and stating that the said George Collin Company had lost and been deprived of certain personal property, and at the close of his said*643 statement he said of and concerning the said plaintiff, in the presence of the said Charles S. Fuller and the other persons aforesaid, the said false, slanderous, malicious, and defamatory words, ‘McLeod stole it.”’
The count for malicious prosecution related to a prosecution of plaintiff on a charge of larceny, upon which the plaintiff was acquitted in the circuit court, where the judge directed a verdict of not guilty. The charge seems to have related to some logs belonging to the George Collin Company, of which company the defendant was president, which logs it was claimed had been sold, and the proceeds appropriated by the plaintiff.
Defendant accompanied his plea with a notice that, if he uttered the words “McLeod stole it,” they were uttered concerning certain property belonging to said company, and that plaintiff had previous to February 10, 1898, and during 1895 and 1896, been in charge of a large amount of personal property of said company, consisting of teams, tools, implements, and machinery for cutting, skidding, hauling, banking, floating, and manufacturing timber into logs, lumber, lath, and shingles, and that plaintiff, well knowing said property to belong to said company, fraudulently, and without the knowledge of said company or its president (the defendant), sold and converted a large portion of said property to his own. use, and caused or permitted other portions of said property to be taken away from the premises of said company and used and appropriated by others, and particularly by the relatives and friends of the plaintiff, “without leave or license so to do, and, without any right whatever to dispose of, use, and appropriate, sold and conveyed and appropriated the funds and proceeds thereof to his own use. And in this sense the defendant will prove the statement that ‘ McLeod stole it, ’ referring to the property of the said George Collin Company, to be true.” Also that, in relation to the malicious prosecution count, defendant would prove that he fully and fairly stated the facts to the prosecuting attorney, and was advised by him that plaintiff was guilty of larceny; and that
The first point discussed relates to the counts for slander. Counsel for the defendant raised the point that they did not state a cause of action, inasmuch as they failed to state what property was referred to by defendant in his statement, “ McLeod stole it. ” The question is not raised by demurrer, and it is therefore improper to apply the test of technical pleading. The declaration shows that the remark applied to personal property of the George Collin Company. It does not specifically describe the articles taken, or mention shingle timber, but it was sufficiently specific to show that the plaintiff was charged-with stealing, as much as though the statement had been, “McLeod is a thief,” “McLeod steals,!’ or “McLeod has'committed larceny.” See Fowler v. Gilbert, 38 Mich. 292. If there is any force in the claim that the words “McLeod stole it ” do not charge a crime, for the reason that the use of the pronoun “it” made the charge indefinite and uncertain, because it may have referred to something not the subject of larceny, its force is lost when taken in connection with .a statement showing that it referred to personal property belonging to the George Collin Company, even if the use of the verb “stole” does not itself imply a larcenous taking of property which is the subject of larceny. The sufficiency of the declaration does not depend upon the statement of plaintiff’s counsel, made on the trial, that he claimed that reference was made to shingle timber merely.
One Smith, a lawyer, was called, and produced certain
The defendant called the prosecuting attorney who prosecuted said criminal case, and sought to show by him that such prosecution was commenced by his advice and direction. It appeared that he went to the locality of the alleged crime with the defendant to investigate the matter, and talked with Mr. and Mrs. McQueen and others about it. He was asked by defendant:
*646 “Q. Did he tell you anything about what the plaintiff in this case had said to him about these logs ?
' “Mr. V. H. Smith: I object to that as immaterial, irrelevant, and incompetent.
“ The Court: The objection is sustained.
“ Mr. Griswold: I take an exception, if you please.
• “A. I did have something to do with the taking out of the warrant for the arrest of' McLeod on the charge of stealing the shingle logs. I directed the issuing of that warrant. I did not order the issuing of the warrant, the filing of the complaint, and the issuing of that warrant' upon the statements made to me by Crosby alone.
“ Q. Upon whose statements, and upon what investigation, did you make that order ?
“Mr. Smith: I object to that as immaterial. There is nothing material in this case but the question as. to Whether the advice is a shield and a protection.
“The Court: It is not a question, at all, of the good faith and diligence of the prosecuting attorney.
'“Mr. Griswold: No; surely not.
“The Court: The answer as given was proper, as the court understands it, whether or not it was done entirely on information furnished by Mr. Crosby, or from additional investigation made by himself. But I do not know that it is competent or material in this case to have the witness go on and state just what investigation he made. Is tha.t your offer ?
“Mr. Griswold: I offered to ask him the question on that very line. I thought it was material, and think so still, to show what information he had about it, and from what source, he obtained it.
“ The Court: I think witness may state in a general way what effort he made himself, independently of Mr. Crosby, in investigating it.”
The importance of this testimony .related to the information upon which the prosecuting attorney acted. We suppose the position taken to have been that, even if Crosby did not fully state the facts to him, it was immaterial, provided he ascertained them from other sources, and acted upon them in advising defendant to make the complaint. ' The court, on reflection, allowed an investigation of that subject.
In his charge, as upon the trial, the court limited counsel
The third notice, however, which we presume the learned circuit judge treated as applicable only to the count for malicious prosecution, was equally defective in an attempt to state facts constituting embezzlement, but it contained a further allegation that, by selling and appropriating the proceeds of the property, he became guilty of the crime of larceny or embezzlement. This notice was broad enough to apply to all of the counts. Embezzlement is made larceny by statute (3 Comp. Laws, § 11565), and it is not unreasonable to say that an embezzler is a thief, or that embezzling is stealing, because larceny is stealing, and embezzling is larceny. Not all larceny is embezzling, but all embezzling is larceny. It may reasonably be claimed, therefore, that, when one says of
We are of the opinion that the notice was a sufficient notice that defendant relied upon proving an embezzle
This conclusion requires a reversal of the judgment and the direction of a new trial, which is hereby ordered.