Edwards v. George Knapp & Co.

• Decision Date: 20 December 1888
• Citation: 10 S.W. 54,97 Mo. 432
• Parties: Edwards et al. v. George Knapp & Company, Appellant
• Court: Missouri Supreme Court

10 S.W. 54

97 Mo. 432

Edwards et al. v. George Knapp & Company, Appellant

Supreme Court of Missouri

December 20, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

James J. Lindley and E.P. Lindley for appellant.

(1) The court, by plaintiff's instructions numbered four and five, instructed the jury that to support the plea of justification of the charge, that the plaintiff did have carnal intercourse with her brother, the same proof must be adduced as would be necessary to convict the plaintiff upon an indictment for the crime of incest, and if the jury entertained a reasonable doubt of the plaintiff's guilt of the crime charged against her, they should find a verdict for the plaintiffs. This was error. Bailey v Norton, 65 Iowa 306; Ins. Co. v. Jachniden, 110 Ind. 62; Ellis v. Buzzell, 60 Me. 209; Note to Sprague v. Dodge, 95 Am. Dec. 528; Peoples v Evening News Association, 51 Mich. 11. (2) The plea of justification was as broad as the charge. Moberly v. Preston, 8 Mo. 463. Snow v. Witcher, 9 Ire. 348.

Crosby, Rusk & Craig for respondents.

(1) No justification of the charge of pregnancy, nor even attempt to prove its existence, having been made by appellant, and the question, whether the charge was any aggravation of what appellant claims to be the main charge, having been left to the jury, the verdict must be for plaintiffs, regardless of any alleged error of the instruction as to reasonable doubt concerning the commission of the crime of incest. "When a part of a divisible charge is justified, the defendant is liable for the part not justified," and "when the charge is entire and justification is pleaded, but fails as to a part, plaintiff is entitled to a verdict." Townshend on Slander and Libel, sec. 359. (2) That respondents' instructions numbered four and five, concerning reasonable doubt, contained the law as it was in this state at the time the instructions were given is conceded, and counsel can hardly be serious in asking this court to reverse a case of this importance and thereby reverse itself rather than leave it to legislative action to change the law if desired. Should it be deemed advisable, however, for the court to change the rule in question, following the widely quoted and able dissenting opinion rather than that rendered by the court in Polston v. See, 54 Mo. 291, such decision could not affect the result in this case.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

This is an action for libel in which plaintiffs obtained judgment for five thousand dollars, from which defendant has appealed, and as one of the points relied upon to sustain the appeal arises on the pleadings it is necessary to insert so much of them as bears upon the point raised, and hereinafter adverted to. Plaintiffs charge in their petition that on the eighteenth day of January, 1885, defendant maliciously published of and concerning the female plaintiff the false and defamatory words and libel as follows:

"Cause of a Double Murder.

"Special to the Republican.

"St. Joseph, Mo., January 17. -- The cause that led to the horrible murder of Austie and Adella McLaughlin, aged seven and nine years respectively, near Flag Springs, Andrew county, in August last, for which crime Oliver H. Bateman was hanged at Savannah on November 21, last, is now unearthed. The deed was the most damnable in the criminal history of the state and the motive that led to its commission has been a matter of no little conjecture. It was predicted that Bateman would weaken and make a confession before the date of his execution, but he failed to do so. On the other hand, he claimed to have experienced religion and denied that there were any facts that he had kept from the public. The McLaughlin and Bateman families lived neighbors, and one Sunday in August the little girls who were murdered went to the Bateman residence to spend the afternoon. There was no one at home but Oliver Bateman and his sister, a young girl in her teens. The children remained a couple of hours and then started home, but never reached their destination. On the following day their little bodies were found in a cornfield lifeless. The eldest, Adella, had been outraged and her throat cut, while a pistol ball had penetrated the brain of the younger. Oliver H. Bateman was arrested a few days later and made a confession of his guilt, which led to his execution on the gallows. To-day your correspondent met two prominent farmers of Andrew county, who reside in the neighborhood of the McLaughlin and Bateman families. From them it was ascertained that the sister of the murderer is now in a delicate condition, and there is no doubt that she was ruined by her brother, Oliver A. Bateman, who was a couple of years her senior. Their theory, and that of the entire neighborhood is, that when the McLaughlin children visited the home of the Batemans, on that Sunday afternoon in August last, they saw something that led young Bateman to fear exposure, and that he followed the children when they departed for home, and brutally murdered them in the field where their bodies were found. The Gazette of this city will to-morrow publish an article giving the facts substantially as related above, and the motive that actuated Oliver H. Bateman to commit the deed will no longer remain a mystery."

Defendant in its answer admits the publication and sets up in justification: "That it is true that, on the fifteenth day of June, 1884, in an outhouse on the farm of Thomas Bateman, the father of the female plaintiff, and of Oliver Bateman, the said Oliver Bateman did have carnal, sexual intercourse with said female plaintiff. And further, in justification, says that, on the twenty-first day of August, 1884, two little girls, Austie and Adella McLaughlin, went to the house of Thomas Bateman and found no one at home but the female plaintiff and her brother, Oliver Bateman, and said little girls saw said Oliver fondling and caressing said plaintiff, manifest a lustful passion for her, unbecoming, improper, and wrong by a brother towards a sister."

The court, by instructions numbered four and five, told the jury that defendant's plea justifying the charge made that the female plaintiff had been ruined by her brother Oliver, amounts to an allegation that she had committed the crime of incest, and it devolved upon defendant to establish and prove the charge beyond a reasonable doubt. This action of the court is assigned for error.

The said instructions were warranted by the ruling made in the case of Polston v. See, 54 Mo. 291; but inasmuch as that ruling was made by a divided court, and is claimed to be not in harmony with the ruling in the case of Marshall v Insurance Company, 43 Mo. 586, we are asked to reconsider it and lay down a rule in harmony with that asserted in 43 Mo. supra, and in harmony with the rule which it is claimed generally prevails in the courts of this country. And inasmuch as no authority is cited in the case of Polston v. See, supra, in support of the rule there laid down, and none in the brief of counsel except 2 Greenl. Ev., section 426, and inasmuch as in the dissenting opinion by Sherwood, J., the authorities therein cited bear directly upon the question involved, and favor the conclusion therein announced, it is deemed not to be inappropriate to review the rule established in the majority opinion, and establish a rule according to principle and weight of authority. In the case of Marshall v. Ins. Co., supra, where suit was brought to recover insurance on a steamboat destroyed by fire, the defense set up was that the owners of the boat had wilfully burned it, thereby imputing to them the crime of arson, it was held broadly that "in all civil cases it is the duty of the jury to decide in favor of the party on whose side the weight of evidence preponderates, and according to the reasonable probability of truth," and it was further held that an instruction in that case to the above effect was proper, though the whole...