State v. Armstrong
106 Mo. 395
Mo.
1891
Check Treatment
Gantt, P. J.

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.

*414It is next urged against this information that it does not contain the written allegations of the libelous matter complained of. Anyone reading the information in this cause would be at a loss to understand this, objection. As a matter of fact, the point made in argument was not that it was not in writing, but it was not written by the prosecuting attorney at the time the remainder of the information was drawn, but the original envelope, or at least that portion containing the alleged libel, was pasted in the information, and made a part thereof. Learned counsel for defendant seem to think that it was very material who did the writing. This point is entirely too technical to be seriously entertained in a court of justice. Besides these specific objections, there is a general assignment of error that the information does not charge an offense under the statute. This information is drawn under section 3869, Revised Statutes, 1889 (R. S. 1879, sec. 1591), which defines a libel as follows: “A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath, or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse ; or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who-is dead, and tending to scandalize or provoke his surviving relatives and friends.”

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 *415country, and these devices were resorted to to force debtors to pay their debts. To such extent did they go that the congress of the United States forbade the use of the mails for their distribution. They had become so common that they were thoroughly understood in the mercantile world. Under this state of affairs, the defendant resorts to this Chicago agency to collect this debt of the prosecutrix. He sets in motion this machine for extorting this money from her. It was known that the prosecutrix was earning her living by her work in the large and responsible dry-goods house of Scruggs, Vandervoort & Barney. Accordingly, these letters, four in number, are directed, to her in the care of her employers. All the mail for the employes of this large house was put together and taken by the carriers to the store. There the various clerks went to a common repository for their mail. So that the scheme was well devised to attract the attention of those with whom she was most intimately connected, and without whose respect and good opinion the life of a sensitive woman would soon become a burden and unendurable. This envelope on its face was designed to attract the attention of the public, and when the prosecutrix received these letters in these envelopes the fact was thereby published that this association was in correspondence with her for the purpose of collecting a bad debt; and we cannot shut our eyes to the necessary implication that she was a bad debtor; that she was not in the habit of paying her honest debts; and was unworthy of credit. Nor are we left in doubt that this was the purpose of the association. In the letter which came under cover of this envelope the agency asks her: ‘ ‘ Can you afford to have the public know that you refuse to pay this bill? You may need credit again some time, but as long as this account remains in this unsatisfactory manner it will be hard for you to obtain it.” In other words : “By means of this style of publishing you to the world we will advertise you as unworthy of credit.” *416Nor was this all. She is warned: “Should you positively refuse to make any arrangements for a liquidation of this claim, we feel justified in advertising the same for sale in the newspapers, as well as to send you a statement regularly until the matter is settled.” These regular communications, if sent without these libelous words in large type, would not attract any attention ; but, received regularly in this form, would give a painful publicity.

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 *417maxim applies in. all its strictness in libel. Besides, Bassford, the editor of the Ledger, testified that the defendant told him he was a member of the Sprague Agency, and in referring to Mrs. Yincil’s letter he said he thought she had received a “ chromo,” to which he alluded. After believing or thinking that she had received this style of a letter from his agents or associates in Chicago, he declined to stop them unless she pays the $5. There was ample evidence to sustain the verdict of the jury as to his knowledge and complicity in originating and publishing the libelous envelope. The pasting of the portion of the envelope containing the libelous matter in the information so as to* make it a component part thereof was unusual, and, we think, wholly unnecessary ; but it certainly did not and could not destroy its character as original evidence in the case ; hence, the trial court committed no error in admitting it as evidence.

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 *418$18.50 against her in a community where she had lived for many years, is rather a vindication. It is questionable, if admitted, if it would have had any appreciable effect upon any sensible juror.

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 *419constitute a complete defense ; and the jury, under the direction of the court, shall determine the law and the fact. I confess that I do not fully comprehend the meaning of the remarkable concluding clause of that section aiid he condemns that instruction. No allusion is made by the learned judge to the bill of rights, nor to the history of this provision in our constitution and law. Section 14, article 2, of our constitution is but a rescript of section 1, Fox’s Libel Act enacted by the British parliament (32 Geo. III.) in 1792. Before that act it had; become to be the rule that the judge, notthe jury, should decide whether or not the publication was a libel. The judge would direct the jury to find the-defendant guilty on proof of the publication of the innuendoes, and of the other necessary averments. But that-act declared and enacted that on the trial of an indictment or information for libel the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue before them. This act in full will be found in Odgers on Libel and Slander, page 665. In the case of Queen Sullivan, for seditious libel, in 1868, this law was interpreted by Fitzgtebald, Judge, who presided in the trial. It is reported in 11 Cox Crim. Law Cases, 51. Among other things, in his charge to the jury, he said : “The next question is of .paramount importance, and it is the one of which the jury are the sole judges, whether these publications are seditious libels % That question of law and fact is intrusted to the jury alone. I know that some of you have considerable experience as jurors, and I have often had the duty cast upon me of addressing you as such. You must have observed that in ordinary cases, especially in the crown courts, the questions were divided into those of law and fact. The questions of law are usually for the judge, and on them the jury are bound to take his direction. The questions of fact are solely for their determination. In this peculiar case of libel the law of the laild says the jury shall determine the whole question whether the *420publication is a libel or a seditious libel. That power has been given to the jury for the purpose of protecting the inviolable blessing of a free and independent press. You should bear in mind that, while you will receive ¡assistance from me, you are not bound to follow anything I tell you. You are the sole judges of law and Tact.”

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, *421in further instructing them that they were themselves the judges of the law of libel, as well as of the facts, and that they were not required to accept the instructions given by the court as conclusive of the law of criminal libel % Is not this instruction, in substance and effect, just what the constitution commands, and is it not simply another way of stating the same principles that were announced by Judge Fitzgerald in the Sullivan case, supra, and Justice Best in Rex v. Burdett, supra, viz. : That, while the judge may assist and inform them what the law is, and it is his duty to do so, still they are, by virtue of organic law, the final judges in a prosecution for criminal libel ? We think so ; and in so doing we conclude that the decision in State v. Hosmer, supra, was decided without this constitutional provision, and its history having been brought to the attention of this court, and inasmuch as it is of the very gravest importance that the constitution itself should govern, we think State v. Hosmer should not longer be followed.

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.

Thomas, J., concurs; Macfarlane, J., not sitting.