97 Ind. 430 (Ind. 1884), 11,339, Seller v. Jenkins

Docket Nº:11,339
Citation:97 Ind. 430
Opinion Judge:Elliott, C. J.
Party Name:Seller v. Jenkins
Attorney:J. Wright and J. M. Seller, for appellant. G. W. Paul, M. D. White and J. E. Humphries, for appellee.
Case Date:October 07, 1884
Court:Supreme Court of Indiana
 
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Page 430

97 Ind. 430 (Ind. 1884)

Seller

v.

Jenkins

No. 11,339

Supreme Court of Indiana

October 7, 1884

From the Montgomery Circuit Court.

Judgment affirmed.

J. Wright and J. M. Seller, for appellant.

G. W. Paul, M. D. White and J. E. Humphries, for appellee.

OPINION

Elliott, C. J.

It is an indictable criminal offence for a man to make an indecent exposure of his person in a public place and in the presence of other persons, and such an offence is punishable by imprisonment. Ardery v. State, 56 Ind. 328. Where the defendant utters words charging the plaintiff with an indictable offence punishable by imprisonment, the words are, as a general rule, deemed slanderous

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per se, and we think that this rule applies where the words impute to the plaintiff the offence of public indecency under our statute. Gibbs v. Dewey, 5 Cow. 503; Brooks v. Harison, 91 N.Y. 83; Lemons v. Wells, 78 Ky. 117; Wilcox v. Edwards, 5 Blackf. 183. The offence of public indecency subjects the person guilty of it to a degrading corporal punishment, and is, in itself, an offence involving moral turpitude, and words charging such an offence have always been held to be actionable per se. 2 Leigh's N. P. 1350; Onslow v. Horne, 3 Wils. 177; Starkie Slan. 41.

It is not necessary that the words uttered should be such as describe the offence imputed by them with technical accuracy. Wilson v. McCrory, 86 Ind. 170. It is, however, necessary that the words uttered should be such as convey to the minds of the hearers an imputation of a crime. If the words used are such as produce upon the minds of those who hear them an impression that the plaintiff was guilty of a crime, they are actionable, although they may not fully describe an offence. Drummond v. Leslie, 5 Blackf. 453. If the words taken altogether are such as in their popular or ordinary signification charge a crime, then they are slanderous per se. Morgan v. Livingston, 2 Rich. 573; Cass v. Anderson, 33 Vt. 182; Colman v. Godwin, 3 Dougl. 90 (2 B. & Cr. 285). Where the words used have a provincial meaning, and it is that meaning that gives the words the force and effect of charging a crime, then that provincial meaning must be averred as a traversable fact. Stucker v. Davis, 8 Blackf. 414; Harper v. Delp, 3 Ind. 225; Dodge v. Lacey, 2 Ind. 212; Rodebaugh v. Hollingsworth, 6 Ind. 339; Jones v. Diver, 22 Ind. 184; Odgers Libel and Slan. 110. An innuendo can not change the ordinary meaning of language, and if the language used is not susceptible of the meaning ascribed to it, the pleading is not aided by the statements of the innuendo. Hays v. Mitchell, 7 Blackf. 117; Miles v. VanHorn, 17 Ind. 245; Ward v. Colyhan, 30 Ind. 395; Hart v. Coy, 40 Ind. 553;

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McFadin v. David, 78 Ind. 445; S. C., 41 Am. R. 587; Pollock v. Hastings, 88 Ind. 248.

There is no allegation in the complaint before us that the words had a provincial meaning, and as the meaning of the words can not be changed by innuendo, the complaint must be adjudged bad, unless the words can be held to bear the meaning ascribed to them by the pleader. In determining what meaning the words alleged to constitute a slanderous charge shall have, it is proper to consider the entire statement, and not merely detached parts of it, and it is also proper to consider the circumstances under which they were uttered. Townshend Slan. and Libel, 181, 186. The question is, not what meaning the defendant intended to convey, but what meaning did the words, taken as a whole and considered with reference to the transaction of which they were spoken, convey to the minds of those who heard them? Odgers Libel and Slan. 93, 99; Branstetter v. Dorrough, 81 Ind. 527. The defamatory words alleged to have been spoken by the defendant are thus set forth: "I saw something I never saw before; I saw a drunken Quaker; it was Jenkins, Jane Cox's son-in-law (meaning this plaintiff, who is a son-in-law of Jane Cox, and who is called a Quaker); he (the plaintiff meaning) was down at Marcus Mote's mill (meaning Marcus Mote's mill in Smartsburg, Montgomery county, Indiana, and is a public place), and was drunk; there were two women in the wagon, and he (plaintiff meaning) took his old root out and pissed before the women (meaning that plaintiff took out his penis and did then and there urinate in the presence of the women and did make an indecent exposure of his person.)" Taking all the language used into consideration, we think that it charges the commission of an act of public indecency by an indecent exposure of the person. It is true that the word "root" does not signify the male...

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