106 Mo. 395 | Mo. | 1891
The appellant contends that various errors were committed in this trial, and they will be noticed in the order in which he complains. His first assignment is the insufficiency of the information. The verification is claimed to be bad, because the prosecutrix only swore that the facts stated were “true to her best knowledge and belief.” This was ruled otherwise in the recent decision of this court in State v. Bennett, 102 Mo. 356. It is next said that the information is bad for duplicity. This objection is raised for the first time in the motion in arrest. There are various methods for taking advantage of duplicity in an indictment or information. A motion to quash, a demurrer, or motion to compel the state to elect, will, either of them, correct this fault; but it is almost universally held that it is too late, after verdict to make this objection in a motion in arrest in a misdemeanor. 1 Bish. Crim. Proc., secs. 442, 443 ; Commonwealth v. Tuck, 20 Pick. 356 ; Whart. Crim. Pl., secs. 255, 760. The cause was heard on the charge of libel, the evidence confined to that offense, and the instructions all had reference to that misdemeanor. We cannot see that any substantial right of the defendant was violated in this respect in overruling the motion in arrest. The matter complained of was at most mere surplusage, and this defect, if any, was cured by our statute of jeofails. Sec. 4115, or R. S. 1879, sec. 1821.
Equally groundless is the objection that the information did not “charge the matter complained of was “wilfully” or maliciously” published. It distinctly alleges that defendant “did wilfully and maliciously libel and defame the prosecuting witness by sending the said envelope with its indorsements through the mails,” etc., and is sufficient, according to the most approved precedents. The defendant was fully informed by it of the nature and character of the offense with which he was charged, and, after all, this is the great object of an information or indictment.
Was the sending of this envelope with these indorsements on it the publishing of a libel, tending to expose the prosecutrix to contempt or ridicule, and bring her in disrepute with her employers and the public? We are clearly of the opinion that it was. The words “Bad Debt Collecting Agency” were printed in large, bold type on the envelopes, and were obviously intended to attract the attention of the public ? These words must be construed in the light of the times in which they are used. Similar associations had sprung up all over the
The evident purpose and design of the defendant and the association he employed, and for whose acts he is responsible in this matter, was to publish the prosecutrix as a bad debtor, a dishonest person, who would not pay her honest debts, and to degrade her in the eyes of the public and her employers, and as such was clearly libelous, and within the meaning of the statute. Muetze v. Tuteur, 46 N. W. Rep. (Wis.)123; Dennis v. Johnson, 44 N. W. Rep. (Minn.) 68 ; Johnson v. Commonwealth, 14 Atl. Rep. 425. The law will not countenance or tolerate this method of collecting a debt. The facts that the debt was originally only $3.45 ; that ifc was barred by the statute of limitations ; that defendant persisted in his endeavor to extort the money from the prosecutrix after her protest; and the avowed .indention of his agents to publish her to the world, and advertise this account for sale in the newspapers, amply sustain the charge that this was maliciously done. To permit a defenseless woman in this day of enlightenment to be thus persecuted would be a reproach to our laws. Beals v. Thompson, 21 N. E. Rep. 959.
It is insisted by defendant that the court ought to have sustained a demurrer to the evidence. The defendant’ s own letters of February 1 and 14, 1888, both show that he was aware that this agency was sending to Mrs. Yincil letters that she regarded as insulting. She had appealed to him to call off this agency, and he complacently informs her he will, when she sends the $5. “ Qui facit per alium, fac'd per sef and this
There was no error in admitting the letter of January 30, 1888, in evidence. It was admissible to show defendant’s knowledge of the means his agency was pursuing in his behalf, and of the claim that the debt was paid ; and his reply, written on the letter itself, shows his determination to persist, notwithstanding the protest of Mrs. Yincil.
Nor did the court err in excluding the evidence of Reed, Emmons, Bedell and Mrs. Harding, tending to prove that Mrs. Yincil owed them altogether some $18.50. No offer was made to prove her general reputation in regard to paying her just debts. She was not expected, nor was the state required, to come prepared to meet and try every individual claim that might be made against her. Evidence of specific indebtedness was not admissible. Wilson v. Noonan, 27 Wis. 598 ; Campbell v. Campbell, 54 Wis. 90; Muetze v. Tuteur, 46 N.W. Rep. (Wis.) 123. Indeed, the fact that, after, the zealous efforts of defendant to destroy-her character as an honest woman, he could only find an indebtedness of
The point made, that the court permitted the state’s counsel to cross-examine the defendant on matter not elicited by his counsel in chief, has. been carefully examined, and we have concluded that it really amounts to nothing more than an inquiry if lie understood what Mrs. Yincil referred to as insulting in her letter of January 30. No possible injury could come from this. The court expressly ruled the counsel for the state to a cross-examination of the matter brought out by defend.ant, and none other was elicited.
The instructions correctly told the jury what was necessary to constitute the libel under the information. The only one requiring special examination is the fifteenth which informs the jury that they are the judges of the law of libel as well as of the facts, and .they were not required to aqcept the instructions given by the court as being conclusive of what the law of criminal libel is. Section 14 of article 2 of the constitution of Missouri •declares “that no law shall be passed impairing the freedom of speech ; that every person shall be free to say, write or publish whatever he will on any subject, being ¡responsible for all abuse of that liberty ; and that in all •suits and prosecutions for libel the truth thereof may be .•given in evidence, and the jury, under the direction of the •court, shall determine the law and the fa'ctf It was to this constitutional provision in our bill of rights, this instruction referred. In State v. Hosmer, 85 Mo. 553, Judge Henby,. in discussing an instruction similar to the one complained of here, says: “The defendant asked the court to declare the law to be ‘ that under the law the jury are to determine the law and the facts in this case.’ Section 1594, Revised Statutes, 1879, is as follows: ‘In all prosecutions for libel or verbal slander the truth thereof may be given in evidence to the jury, and shall
In Rex v. Burdett, 4 Barn. & Ald. 131, Mr. Justice "Best said : “ Libel is a question of law, and the judge Is the judge of the law, in libel as in all other cases. The jury having the power of acting agreeably to his statement of the law or not.” When we remember the origin of this provision in our constitution, that it was the result of the speech made by Lord Erskine, "in his defense of-the Lean of Asaph in 1784, a speech •declared by Pox to be the finest argument in the English .language, and that this speech prepared the way for the ¡adoption of Pox’s libel bill in 1792, it is impossible for us to view it as having no other or different meaning •than the other provisions guaranteeing a “jury trial. Loes not the usual construction apply here, as in other ■cases, — that, when foreign laws are adopted, and made a part of our code, the presumption is that we adopt also the construction already given by the foreign courts where they had their origin? As we have seen, the ' English courts make a broad distinction in prosecutions for criminal libel and all other cases as to the province •of court and jury. The scope of this opinion forbids any '.further elaboration of the great principles upon which this provision is founded. The argument of Lord Erskine on the right of juries in criminal libel is in itself a complete history, and will be found reported in full in 21 How. State Trials, 847-1046. Viewed in the Tight of the history of the constitutional provision, and the great contest for the freedom of the press out of which it grew, and of the construction given Pox’s libel bill by the English judges, did the criminal court •err, after it had fully instructed the jury in this cause,
This brings us to the conclusion that there are no reversible errors in the record in this cause, and the' judgment of the criminal court is accordingly affirmed.