State v. Armstrong

• Decision Date: 02 June 1891
• Citation: 16 S.W. 604,106 Mo. 395
• Parties: STATE v. ARMSTRONG.
• Court: Missouri Supreme Court

16 S.W. 604

106 Mo. 395

STATE v. ARMSTRONG.

Supreme Court of Missouri, Division No. 2.

June 2, 1891.

LIBEL — INDICTMENT — EVIDENCE — INSTRUCTIONS.

1. An information for criminal libel is sufficiently verified by an affidavit that the facts stated are true to the affiant's best knowledge and belief. Following State v. Bennett, 14 S. W. Rep. 865.

2. It is too late after verdict to object to duplicity in an information for a misdemeanor.

3. Where an information charges that the accused did willfully and maliciously libel and defame the prosecuting witness by sending to her through the mails an envelope with certain libelous indorsements thereon, it is sufficient, though it does not charge that the matter complained of was willfully and maliciously published.

4. In a prosecution for sending through the mail an envelope with libelous indorsements thereon, the information is not bad because the libel is set out by pasting the original envelope in the information, and making it a part thereof.

5. The pasting of the original letter in the information does not destroy its character as evidence in the case.

6. It is a libel to send through the mail an envelope having indorsed thereon, in large letters, "Bad Debt Collecting Agency."

7. Having employed the agency with knowledge of its methods, and having refused to stop its proceedings after having reason to believe that it was sending these envelopes to the prosecuting witness, the accused is responsible for the acts of the agency.

8. Evidence that the prosecuting witness owed a few small bills is not competent for the defense.

9. Under Const. Mo. art. 2, § 14, providing that in prosecutions for libel "the jury, under the direction of the court, shall determine the law and the facts," it is not error to charge that the jury are the judges on the law of libel as well as of the facts, and are not required to accept the instructions of the court as conclusive. Overruling State v. Hosmer, 85 Mo. 553.

Appeal from St. Louis court of criminal correction; E. A. NOONAN, Judge.

This is a charge of criminal libel. The defendant lived in Mexico, Mo., and the Sprague Collecting Agency did business in Chicago, Ill., and the defendant's firm, consisting of Kabrick, Armstrong, Atkins, and Snyder, employed this agency to do some collecting for them, and among the claims placed in its hands was one of five dollars against the prosecuting witness. Mary Vincil. The agency used an envelope which bore the device "bad debt" in large letters. The charge consists in accusing the defendant of procuring the said agency to send envelopes to the address of the said Mrs. Mary Vincil, in St. Louis, from Chicago, Ill., and that the said words so used on the envelope are libelous. The information is as follows:

"State of Missouri, City of St. Louis — ss.: In the St. Louis court of criminal correction. St. Louis, March 29th, 1888. State of Missouri, Plaintiff, v. A. G. Armstrong, Defendant. Charged with criminal libel. Bernard Dierkes, assistant prosecuting attorney of the St. Louis court of criminal correction, now here in court, on behalf of the state of Missouri, information makes as follows: That A. G. Armstrong, of Mexico, Audrain county, Missouri, in the city of St. Louis, on the 27th day of March, 1888, and on divers days in said year, did willfully and maliciously libel and defame one Mary Vincil, of the city of St. Louis, by causing to be published and issued in said city, and by having sent through the mails, and put before the eyes of divers people in said city, a certain envelope, printing, writing, sign, representation, and effigy, as follows:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

— Intending and meaning thereby to indicate to the public and to all persons seeing said writing, printing, sign, representation, and effigy that she, the said Mary Vincil, was dishonest; that she did not pay her just debts; that she had been guilty of unfair dealing; that she was a `dead beat,' tending to provoke the said Mary Vincil to wrath, to expose her to public hatred, contempt, and ridicule, and to deprive her of the benefits of public confidence and social intercourse. That said envelope contained certain scurrilous, blackmailing, and indecent allegations concerning said Mary Vincil as follows:

                               "`SPRAGUE'S
                  439          "`Bad Debts
                  ---
                   I      "`Collecting Agency
                            "`Agency's 4th Letter
                "`Mrs. Mary Vincil,    Chicago, 3-26, 1888
                   "c-o A. G. Armstrong:         5.00
                

"`We find that the account which we notified you some time ago is still unsettled. Can you afford 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. If you desire to have credit with the merchants in your locality, and maintain a reputation for honesty and fair dealing, you will adjust this claim. Call on or write the party, and make some kind of a settlement at once. If you will pay part of it now, and make some arrangements for the balance, we will not crowd you for a while. Have the party to whom the bill is due write us at once, stating what arrangements you have made, before we publish the delinquent list of your town. Very respectfully,

                        "`SPRAGUE'S COLLECTING AGENCY
                               "`Per.'
                

"`P. S. 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. A delinquent list is published for the good and protection of the public, as well as a guide for business men in extending credit, as it contains the names of those who do not try to meet their obligation. Do not correspond with us. Settle the matter with the party to whom the account is due, whose name was given in our former letter.'

— That said envelope was known by the public to contain said scurrilous and abusive matters, and said Armstrong intended, by causing said matter to be sent to said Mary Vincil through the mails, to advertise her as a `dead beat,' as dishonest, as `poor pay,' as unfit to be trusted, as unfit for public confidence; and said acts were done by said Armstrong to extort money from said Mary Vincil, under the pretense that she, the said Mary Vincil, was indebted to him, when such was not the fact, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

                    [Signed]        "BERNARD DIERKES
                "Asst. Pros. Atty. St. Louis Court of
                  Criminal Correction."
                

"State of Missouri, City of St. Louis — ss.: Mary Vincil, being duly sworn, upon her oath says that the facts stated in the above information are true, according to her best knowledge and belief. [Signed.] MRS. M. B. VINCIL.

"Sworn to and subscribed before me, this 6th day of April, 1888. [Signed] MICHAEL J. KENEFICK."

The case, as made by the evidence, showed that defendant was a member of the firm of Kabrich & Co., merchants of Mexico, Mo. Mrs. Vincil, the prosecuting witness, had in her girlhood, and prior to her marriage, lived in Mexico. After her marriage she and her husband continued to live in Mexico, until he was killed in a railroad accident in 1880. After that, in the year 1881, she removed to St. Louis, and at the time of this prosecution she was clerking for Scruggs, Vandervoort & Barney, of St. Louis. According to the testimony of defendant, his firm claimed that she owed them an account of $3.70, due in 1881, and interest to the date of this prosecution, amounting in all to $5. This claim they placed in the hands of the Sprague Collecting Agency of Chicago. This agency used in its business an envelope, with these words printed on it in the left-hand upper corner: "Bad Debt Collecting Agency. 218 La Salle St., Chicago." Upon the receipt of this account, they opened a correspondence with Mrs. Vincil. It appears that she received four communications in envelopes like this in regard to this debt. The envelope described in the information was the fourth of the series that she received. She testified that at the time she received the first she was working at Scruggs, Vandervoort & Barneys; that a large number of employes were in the house; that their mail was put in a common repository, and distributed out of a common box; that different ones saw this letter, and the superscription on it. She was so mortified at this that she went to the post-office, and directed her mail sent to her residence. Her relations saw the other three letters she received. When she received the first letter, she wrote, on 30th January, 1888, to Armstrong, the defendant: "Dear Sir: I received the inclosed from some association in Chicago. How dare you do such a thing? I have never refused to pay a just debt, but I do most emphatically refuse to pay them twice. My word is as good as Mr. K.'s, and I say again I have paid this bill, — a part at one time, and the balance on leaving Mexico. I have a statement of $5.85 from Mr. K. If he remembers a part of it being settled, how is it I am still charged with the full amount? I do not propose, with all my present grief and troubles, to be persecuted and annoyed further by you. There is a limit to all things. It is as much as I can possibly do to support myself and child; and, now that my father is dead, I will also have to contribute to my mother's support. This double method on your part to collect this bill twice is outrageous, more especially as it is against a woman who has no other resources but her own exertions to maintain herself and child. It is unworthy of a man. I will not submit to further insult. You will drop this at once, and withdraw my name, as you have no right to use it in such a manner. If you continue this it will be at your cost. [Signed] MRS. M. B. VINCIL, No. 2 N. Beaumont Street." On the bottom of...