85 Mo. 553 | Mo. | 1885
This is an information filed by the prosecuting attorney of Webster county, in this state, against defendant for publishing an alleged libel. The-cause was tried before P. M. Mansfield, as special judge-Defendant was convicted, and has appealed to this court. The entry of record, in relation to the election' of a-special judge, is as follows :
“State oe Missottei
v.
£ £ Edmund Hosmeb.
“Now, at this day, comes the prosecuting attorney,, etc., and also the defendant in his own proper person, and by attorney, and, the judge being disqualified from sitting in this case, and a special election of a judge being ordered, whereupon the clerk calling the roll of attorneys, and by a role of the disinterested members-of the bar, P. M. Mansfield, a qualified member of the bar, was duly elected,” etc.
It is urged that the judgment is void, because Mansfield was not duly elected, and the .point made is, that-the order,’ failing to state the fact or facts which disqualified the regular judge, invalidated the election of a special judge. Section 1107, Revised Statutes of Mis
There is nothing in the section which expressly requires that the facts which disqualify the judge should appear in the order, nor is there anything in the nature of the case which renders it necessary. The disqualifying facts are not issuableVhen the judge himself declares their existence. He "alone determines, in such case, his own disqualification, and there is no necessity for stating more in the order than the one under consideration ■contains.
The objection to the competency of the juror Love is not well founded. On his voir dire he stated, on being asked if he had formed or expressed an opinion as to the guilt or innocence of the defendant, that, on general principles, he might say he had formed an opinion, but not in this particular case; that his opinion on general principles was, that some of the statements in some of the communications were not true, but about this case he had formed no opinion, and would be controlled by the law and the evidence. The meaning of the juror is somewhat obscure in some respects, but it is clear
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 constitute a complete defence. 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. If it means what appellant’s counsel contends it does, then, in prosecutions for libel or slander, the court need give no declarations of law to the jury at all. The instruction he asked was not in the language of the law. Prom it are omitted the words, “under the direction of the court.” As well contend on such a construction, that the jury may determine the facts, without regard to the testimony of the witnesses. Can it be that the legislature intended that in a prosecution for libel, the jury might try the cause on their own views of the law, and that they should, if they saw proper, disregard instructions the court might give them as the law applicable to the case % If so, then the court should abstain from giving instructions to the jury in prosecutions for libel, whereas, in all other criminal proceedings it is error not to declare the law to the jury, as has been repeatedly held by this court.
If we may venture to construe the language, our conjecture is, that it simply reasserts what has always been the law, that the jury should learn of the court the law applicable to the testimony in the cause, and find the issues of fact under the guidance of the court, as in other causes. If it means more than this, and is as broad in its significance as appellant’s counsel contends, then the court, in the trial of such causes, is but a figurehead, and might be dispensed with entirely. We
Appellant also complains of the refusal of the court to give an instruction asked by him, to the effect that the jury should acquit him unless they found that the words charged in the information were false. The court, ■of its own motion, instructed the jury that they should acquit defendant unless the words charged in the information were false, but that it devolved upon the defendant to show that they were true. There can be no ■objection to that instruction. The first clause is what the defendant asked and the latter was properly added. When the publication of libelous matters by the defendant is proven, the burden of proof is on the defendant to show any facts which justify the publication. 2 -Grreenleaf’s Evidence, p. 422, sec. 427 (14 Ed.)