54 Mo. 291 | Mo. | 1873
Lead Opinion
delivered the opinion of the court.
This was an action for slanderous words, charged to have been spoken by the defendant- of the plaintiff, and thereby imputing to him the crime of 'larceny in stealing lumber belonging to the defendant.
The slanderous words were set out in three several counts of the petition, which concluded with a prayer for damages to the amount of $5,000.
The answer denied the speaking of the words as charged in the first and second counts, and justified as to the last count, on the ground that the words were true, and that the plaintiff had been guilty of the larceny as charged.
There were several mis-trials, but the case finally resulted in a verdict and judgment for the plaintiff for $500. The verdict was a general one, finding all the issues in favor of the plaintiff, and assessing a single sum of five hundred dollars for his- damages.
Each party gave evidence tending to prove the issues on their respective sides. The plaintiff was alloAved to prove his own condition in life and also that of the defendant, as bearing upon the question of damages, and an instruction wag also given on this point in favor of the plaintiff. During the progress of the trial the plaintiff was introduced as a witness, and was allowed to testify in regard to what had been done and said by him in removing some lumber from the defendant’s mill when the defendant was not present.
After the close of the evidence, various instructions were asked and given for the plaintiff, only one of which need be referred to, as there is no point made on the others. The instruction complained of was to the effect, that under the defendant’s plea of justification, the s^me amount of proof was necessary to convict the plaintiff as if he was on trial for the ..crime, and that if the jury entertained a reasonable doubt of liis guilt they must find for the plaintiff; that any such doubt, however, to be available, must be a rational doubt, growing out of the evidence in the case and consistent with it, and not a mere hypothesis or possibility of innocence.
2. The plaintiff’s condition in life, as well as that of the defendant, are proper subjects of inquiry in slander eases on the question of damages. Slander, uttered by a man of great influence in society, would certainly be more injurious than if spoken by a party-of no consequence' at all.
3. The testimony, which the plaintiff was allowed to give in regard to what was done-and said when he took the lumber, was a part of the res gestee, and was properly admitted. The words spoken by him in the absence of the defendant were verbal adts, and as such admissible as a part of the transaction.
4; The main point discusse’d.here grows out of the instruction by which the jury were told, that if they had a reasonable doubt of the plaintiff’s guilt under the plea of justification, they must find the issues for him.
I am not aware, that this question has ever been directly passed on by this court. So far as I know, the legal profession throughout the State have acted on the presumption that it was the settled law. It seems to have been so considered at the Circuits, and it is now for the first time mooted in this court.
■ It has the support of the English authorities, and, I presume, of the majority of the American courts. The reason of the rule is, that a verdict of a jury on the question of guilt or innocence has at least the same moral force as a verdict in a criminal trial for the same' offense. There seems to be no other civil case where a verdict has the same moral force. If this had been a suit for trespass against the plaintiff for the taking and conversion of the defendant’s lumber, the simple fact of trespass, without regard to the intention, would have
Let the judgment be affirmed.
Dissenting Opinion
Dissenting opinion of
Polston broughthissuitinthe Audrain Circuit Court against See, for certain slanderous words, alleged to have been spoken and published by the defendant, charging the plaintiff with the crime of theft.
The cause was tried before a jury, and the evidence was conflicting. At the conclusion of the testimony the court gave nine instructions for the plaintiff, and six for the defendant. Among those on behalf of the plaintiff, was one couched in these words:
“The jury are instructed that to support the special plea of justification set up by the defendant in this case, to-wit: that the plaintiff did steal, take and carry away defendant’s lumber, the same evidence must be adduced as would be necessary to convict the-plaintiff upon an indictment for the ciime imputed to him; and if the jury entertain a reasonable doubt of the plaintiff’s guilt of the crime charged against him by the defendant, the jury should find a verdict for the plaintiff, and assess his damages at such sum as tlie_y may deem him entitled to under all the circumstances, not to exceed the sum of five thousand dollars. Any such doubt however, to be available to plaintiff, must be a rational doubt, growing out of the evidence in the case, and consistent with it, and not a mere hypothesis or possibility of innocence.”
This instruction was objected to by defendant, and the propriety of giving it will therefore now be discussed.
Mr. Greenleaf, in his work on Evidence, lays down the rule in this'way:
“To support a special plea of justification, where crime is imputed, the same evidence must be adduced as would be necessary to convict the plaintiff upon an indictment for the crime imputed to him; and it is conceived, that he would be entitled to the benefit of any reasonable doubts of his guilt in the minds of the jury, in the same manner as in a criminal trial.” (2 Greenlf. Evid., § 426.)
But of the authorities cited in the margin in support of
The reason, which gave origin to the rule in England was this:
If upon the trial of the plea of justification (which imputed the commission of a felony) the issue was found for the defendant, the plaintiff was thereupon held to answer the felony without any further accusation ; the verdict being held equivalent to an indictment, and the intervention of a grand jury unnecessary. (Cook vs. Field, 3 Esp., 133; 2 Curw., Hawk., 291; 2 Hale 150; 1 Chit. C. L., 135 and 164.) So that pqnal consequences to the plaintiff ensued upon a finding under such circumstances for the defendant, and the rigidity of the rule we are considering was but a part and parcel of that tenderness and benignity, which the law has ever extended towards him whose life or liberty is imperiled.
And to such an extent in England was the doctrine carried, where the verdict in a civil case disclosed the commission of a felony, that it was not confined to actions for libel and slander alone, but parties were frequently sent over to the criminal side of the assizes to take their trial for felonies as the result of verdicts in other civil actions. (Prosser vs. Rowe, 2 C. & P., 421, and note 6.) But as in this country no such results attend the verdict of a jury in any civil case, it would seem evident that the rule, as well as the reason on which it is founded, should cease together in accordance with the maxim “Oessante rations legis cessatipsa lex.”
And in those States of our Union, where the English rule has been followed, it is thought to have resulted from the inadvertent adoption of proceedings, which have no applicability to our, in many respects, widely different system of jurisprudence.
In Iowa the rule obtaines, and the later decisions in that
In the subsequent eases in that State, the broad doctrine, as enunciated in Tull vs. David, supra, has been sanctioned. And this is true of many other States, But it is conceived that, wherever this doctrine has received the sanction of the courts of this country, two elements will be found in the error which conduced to such result:
First, that, already alluded to, of blindly following English precedents, oblivious of the reasons which gave them origin : Second, that of confounding' together, and regarding as identical, the same kind with the same degree of proof.
Where the alleged slanderous charge imputes the crime of perjury, there the oath said to be falsely taken must be rebutted, or neutralized, by the testimony of one witness. The ease then stands oath against oath; then the equipoise, thus created in the evidence, is, in- order to sustain the plea of justification, to be overcome by the testimony of one witness, or by eoiToborative circumstances. And this is all that many of the authorities intend, when employing language of a much stronger and more comprehensive signification.
During the prevalence of the former practice in chancery the answer of the defendant, being under oath, had to be disproved by two witnesses, or by one witness and corroborating circumstances, and yet no one ever had the temerity to contend, that the mind of the chancellor, before entering a decree, had to be satisfied of the truth of the allegations of the bill, beyond a reasonable doubt.
Under the operation of the English rule in those States, where it has been adopted, A. may sue B. for the crime of burning his house, and may recover upon testimony which is sufficient in other civil cases. But if A. is so unguarded as to state, that B. did such criminal act, and B. sues him, he will be mulcted in damages, if not able to establish beyond “a reasonable doubt,” that B. had committed the crime of arson.
Surely such chameleon-lilce changes in the rules of evidence, where the same facts are involved, do not comport with the dignity of the law as a science, nor with the proper administration of justice. Our natural sense of right revolts at such purely artificial and palpably unjust distinctions.
The point now being considered is of first impression in this State, and it is therefore important that it be settled on a correct basis, and in strict accordance with the analogies of the law and practice in other civil actions.
A question, nearly akin however to the one under discussion, was passed upon by this court in Marshall vs. Thames.
Although the views here ' enunciated are in opposition to the rule as laid down by respectable and able authorities in many, if not in a majority, of our sister States, yet these views are, as I think has béen-plainiy shown, supported by sound reasoning, and are besides upheld by courts of unquestioned ability in the States of Maine, New Hampshire North Carolina, Louisiana and Alabama. (Ellis vs. Buzzell, Am. Law, Reg. [July 1873] 426 ; Matthews vs. Huntly, 9 N. H., 146 ; Folsom vs. Braun, 25 Id., 114; Kincade vs. Bradshaw, 3 Hawks., 63 ; Hoffman vs. Western M. & F. Ins. Co., 1 La. An., 216; Hopper vs. Ashley, 15 Ala., 457; Spruil vs. Cooper, 16 Id., 791.)
’Viewing this matter as above indicated, the giving of the instruction complained of constitutes a good ground for reversal of the judgment recovered by the plaintiff. In addition to this, the court, on the part of the defendant, gave an instruction to the effect, that, if plaintiff, either in person or by his agent, took and carried^ away the lumber of defendant, knowing it to be defendant’s, without the consent of defendant, the jury should find for the defendant.
This instruction utterly ignores and omits the essential ingredient of a felonious intent, without which there could be no larceny.
By no possible stretch of ingenuity can these instructions be made to harmonize. They are in direct and irreconcilable conflict, and neither one asserts the law. (43 Mo., 586.)
The above are grounds very satisfactory to myself at least, why this cause should be re-tried; but my associates, with whom I do not concur as to the chief question involved in this case, while they do not controvert the correctness of my reasoning, state, in behalf of the conclusion which they have reached, that the plea of justification inactions of slander is an exception to the general rule; and I am told that: “The reason of the rule” (in such actions) “is, that a verdict of a jury on the question of guilt or innocence has at least the same moral force as a .verdict in a criminal trial for the same offense,” and that “there seems to be no other civil case where a verdict has the same moral force.” But this is altogether an erroneous idea, as I will now proceed to show.
In an action for Crim. Con. the verdict, if for the plaintiff, would set the seal of an indelible stigma on the character of her, concerning whom the action was brought, as effectually as if the parties engaged in the criminal act were found guilty thereof upon an indictment charging such criminality, and consequently a verdict for the husband, in the civil suit I have instanced, would be as heavily freighted with “ moral force f as would the verdict for the defendant, which upholds the plea of justification, in an action for slander.
So also, in an action on a policy of insurance, a verdict, which in effect brands the plaintiff therein with the crime of arson, would carry with it an amount of “ moral force” not inferior in degree to that borne by a verdict,-which establishes the truth of the alleged slanderous words, in a suit for defamation of character.
The above illustrations are only a few out of a great number, which might be employed to show the utter fallacy of the argument based on “ moral force.”
Mr. Greenleaf, in his work on Evidence, lays down just the same rule in actions on policies of insurance, where the charge is that the plaintiff burnt his .own property, as he does in actions of slander where the defendant justifies by pleading the truth of the alleged slanderous words. (2 Glf. Ev., § 408.)
And the learned author cites “English Authorities” in support of his text. But these authorities are not held for law in.many of the American States, nor in this State as already shown in Marshall vs. Thames Fire Ins. Co., supra, where this court repudiates the English doctrine, and asserts the sufficiency of a preponderance of evidence in such cases to establish the defense that arson had been committed on the property insured. Eor Judge Wagner, in commenting on the issues raised by the pleading, expressly says :
“ The defendant in its answer ***** averred as matter of defense, that the burning,of the Steamboat Magnolia ***** was occasioned, caused and brought about, by the direct agency, procurement, contrivance and directions of Marshal and Kilpatrick, the plaintiffs. The whole defense was distinctly staked upon that issue,”
But it is said that “in actions on policies of insurance, where the offense is, that the plaintiff burnt his own house, it has been held, that a mere preponderance of evidence is sufficient to establish the defense. The distinction is that this is a good defense under the policy, no matter what the intent of the plaintiff was in burning his house.”
This attempted distinction is however by no means satisfactory ; because it would be impossible to directly charge the plaintiff with burning his own property without imputing to him'the commission of a felony, and without, if the verdict sustained the charge, effectually stamping the disgrace
Heretofore, it had been supposed, that it belonged exclusively to this tribunal to determine what the law, settled or otherwise,was, and that, in so declaring the law, it would not be engaged in any extra judicial or legislative act.
Aside from decisions, which by being acted upon for a series of years have thereby become rules of property, when a point is presented for the first time to a court of last resort, it should be the highest aim of modern adjudication to follow principle always, in preference to, and rather than, mere precedent ; to subject decisions of other courts, or the dicta of text writers, to the crucial test of a skeptical and remorseless " analysis, and to unhesitatingly reject them, if found wanting in that life of the law, sound reason.
For, as Sir William Jones so eloquently observes: “It law be a science, and really deserve so sublime a name, it must be founded on principle, and claim an exalted rank in the empire of reason.”