Seller v. Jenkins

Citation97 Ind. 430
Decision Date07 October 1884
Docket Number11,339
PartiesSeller v. Jenkins
CourtSupreme Court of Indiana

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 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; 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 organ of generation, but when this word is considered in connection with the words with which it is associated, it is plain that the meaning conveyed to the hearers was, that an indecent exposure of a private part of the person had been made. The word "pissed" has a definite and well known meaning, and describes the act charged to have been done by the plaintiff in such a way as to plainly convey to the hearers the speaker's meaning, and in describing what was done this term so clearly affixed a meaning to the words with which it was associated that those who heard could not have been in doubt as to the part of the person the plaintiff was charged with having exposed. In Com. v. Kneeland, 20 Pick. 206, Chief Justice Shaw said: "If therefore obscure and ambiguous language is used, or language which is figurative or ironical, courts and juries will understand it according to its true meaning and import, and the sense in which it was intended, to be gathered from the context, and from all the facts and circumstances under which it was used." Vanderlip v. Roe, 23 Pa. 82; Dellevene v. Percer, 9 Dowl. P. C. 244; Branstetter v. Dorrough, 81 Ind. 527, vide auth., p. 529.

The general rule is that a cross-examination must be confined to the subject-matter of the direct examination, but this rule does not apply where questions are propounded for the purpose of laying the foundation for an impeachment of the credibility of the witness. A witness may be impeached upon matters directly connected with the subject-matter of the action, but not upon collateral matters. The question before us in this instance is whether the matters upon which questions were asked on cross-examination were collateral to the subject of the action, for, if they were, then an error was committed in allowing the questions on cross-examination; if they were upon matters not collateral, then the ruling of the trial court was right. The answer of the appellant was in a single paragraph, and justified the charge made by the appellant, on the ground that the charge was true. Appellant was called as a witness, and on his direct examination testified to matters tending to establish his answer, and also testified that he did not charge the appellee with the offence of public indecency, nor so intend to charge. Among the questions asked him on direct examination was this: "State if at any time, and in your conversations with any persons to whom you related this transaction, you said that you had seen Cyrus Jenkins down there in this affair, if you had any intention of charging him with the commission of any crime that would subject him to a fine and imprisonment?" The answer to this was: "No; I had not." The appellant also testified that he had no malice against the appellee; and he, the appellant, further stated the name of the person to whom he first spoke of the matter, and gave the names of the persons from whom he heard of the alleged act of indecency. On cross-examination the appellee was permitted to ask the appellant whether he had not, at times and places named, made certain specified statements to persons designated in the questions, and on the ruling admitting this evidence arises the question for our decision.

The answer presented a single issue, and that issue was whether the charge embodied in the words of the appellant was or was not true, but the subject-matter of the action was the slanderous utterances. The jury had before them the whole controversy, for they could not intelligently award a compensation without considering the entire subject, which was before them by the pleadings, and borne upon in a material degree by appellant's testimony in the direct examination. In technical exactness, the issue was whether the charge was true, for the utterance of the slanderous words was admitted; so that in strictness it can not be said that the evidence was directly addressed to the issue, but although not in strictness directly addressed to the issue it was directly and materially connected with the subject-matter of the action, and was relevant to the case; it did, in truth, constitute a most material part of the case. We are unable to perceive how a matter materially and directly connected with the subject-matter of the action, and relevant to the case, can be said to be collateral. We understand the rule to be that a distinctive collateral fact can not be inquired into for the purpose of impeaching a witness, but we also understand that where the fact is not collateral the inquiry is proper. Starkie says: "It is here to be observed, that a witness is not to be cross-examined as to any distinct collateral fact for the purpose of afterwards impeaching his testimony by contradicting him." 1 Starkie Ev. 200. At another place this author says: "The rule does not of course exclude the contradiction of the witness as to any facts immediately connected with the subject of inquiry, which in themselves would otherwise be legitimate evidence in the cause." 1 Starkie Ev. 203. Another English author says: "In accordance with this general principle, a witness may be cross-examined as to a former statement made by him relative to the subject-matter of the cause, and...

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