Bundy v. Hart

• Decision Date: 31 October 1870
• Parties: ALFRED BUNDY, Respondent, v. WILLIAM HART, Appellant.
• Court: Missouri Supreme Court

46 Mo. 460

ALFRED BUNDY, Respondent,

v.WILLIAM HART, Appellant.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Fourth District Court.

Harrington & Cover, and Barrow & Millan, for appellant.

I. The statute of Indiana, relating to the offense, should have been pleaded and proved like any other fact. If not pleaded, the court should not have permitted it to be read in evidence. (Townsh. Sland., § 159.)

II. There is clearly a variance between the allegation in the petition and the proof. The weight and preponderance of the evidence shows that the words spoken were: “It is reported that he had to leave Indiana for burning a barn.” These words do not support the allegation in the petition. The words proved are not equivalent to the words charged, nor are they the same in substance, nor is the same idea conveyed. (Birch v. Benton, 26 Mo. 153; Coghill v. Chandler, 33 Mo. 115; Berry v. Dryden, 7 Mo. 324.)

III. The petition does not state facts sufficient to constitute a cause of action. The words charged, to-wit: “he had to leave Indiana for burning a barn,” are not actionable per se. Words, to be actionable per se, must of themselves impute the commission of an indictable offense for which corporal punishment may be inflicted as the immediate punishment, and not as a consequence of a failure to satisfy a pecuniary penalty. (Birch v. Benton, supra.) The statute of Indiana not being pleaded, the question as to whether the burning of a barn is arson will be governed by the common law. Courts can not take judicial notice of the statutes of Indiana, but will presume that their common law is the same as ours. (Warren & Dalton v. Lusk, 16 Mo. 102; Houghtaling v. Ball, 19 Mo. 84.) To burn a barn is not arson at common law. (Townsh. Sland., § 337; Barham v. Nethersol, Yelv. 21.) At common law, arson is the willful and malicious burning of the house or outhouse of another man, and it must be the dwelling or some outhouse which is parcel thereof. (2 Whart. Am. Cr. Law, §§ 1658, 1667; Townsh. Sland., § 166; 4 Blackst. 220.) A man may burn a barn and be justified in it. (Ingalls v. Allen, Breese, 300.)

IV. Either the words themselves must be such as can only be understood in a criminal sense, or it must be shown in a colloquium in the introductory part that they have that meaning, otherwise they are not actionable. (Townsh. Sland., note 163; Holt v. Scholefield, 6 T. R. 691; Harrison v. Stratton, 4 Espin. Cas. 281; Edgerly v. Swain, 32 N. H. 478; Chaddock v. Briggs, 13 Mass. 248; Bloss v. Tobey, 2 Pick. 320; Dorrey v. Whipps, 8 Gill, 457; 13 U. S. Dig. 445, § 61; Townsh., § 337; Barham v. Nethersol, supra; Gamsford v. Blatchford, 7 Price, 544; 6 Price, 36.) There is no allegation in the petition that, by the laws of Indiana, it is made arson to burn a barn.

Porter, Williams & Eberman, for respondent.

I. In Missouri, where the words were spoken, the burning of a barn, as charged in the petition, was arson. To the bystanders there the words imported the crime of arson. Then it was wholly immaterial whether the burning was arson in Indiana or not, since it was arson where the words were spoken. (Russell v. Cornell, 24 Wend. 356; Case v. Buckley, 15 Wend. 327.)

II. The testimony of appellant cures any defect there may have been in the petition by reason of its not averring that the burning of a barn in Indiana was there indictable; for such testimony shows that, from a letter which defendant claimed he had received from Indiana, plaintiff had been indicted for there burning a barn.

III. Although a petition may be defective, yet if it appear that the verdict could not have been given or the judgment rendered without proof of the matter omitted to be stated, the defect will be cured and the judgment will not be arrested. (Richardson et al. v. Farmer et al., 36 Mo. 45, and authorities cited.

BLISS, Judge, delivered the opinion of the court.

The plaintiff prosecutes for slander, charging it as follows: “Plaintiff states that on or about the first day of December, 1866, defendant spoke the following false and slanderous words concerning the plaintiff: ‘That he had to leave Indiana for burning a barn,’ thereby meaning and intending to charge that plaintiff had been guilty of the crime of arson, and was so understood by the bystanders,” etc. Defendant denied the speaking the words, and, upon the trial and by motion in arrest, claimed that the words were not actionable without the allegation that, by the laws of Indiana, burning a barn could be arson. That the words spoken, in order to be actionable in themselves, must import a crime involving disgraceful or corporal punishment, is not denied, and the elucidation of the law by Judge Richardson, in Birch v. Benton, 26 Mo. 163, leaves nothing to be said upon that point.

We can only assume that an act is criminal in another State or country where the court can not take notice of its laws, by proof of the fact, or by reference to the general or common law; and hence if the words charge an act to be done in another jurisdiction, which is not a crime by the common law, in order to make them actionable the petition should show and the evidence establish its criminality by the laws of such State or country. If the offense charged be a crime by the general law involving the punishment spoken of, as a charge of administering poison (33 Verm. 136), or of larceny (4 Blackf. 460), or murder (3 Wis. 709), the words are actionable without any allegations concerning the laws of the State or country where the offense is charged to have been committed. The court will assume that such offenses are universally punishable in a criminal court (Johnson v. Dicken, 25 Mo. 580); but it is otherwise where the act is not subject to criminal punishment at common law. Thus, it was held in Barkley v. Thompson, 2 Penn. 148, that a charge of adultery committed in New York is not actionable in Pennsylvania without showing it to have been punishable in New York as a crime; and all the authorities go to the same extent. (Wall v. Haskins, 5 Ired. 177; Townsh. Sland., § 160, and cases cited.)

I find no difference in the authorities in regard to the necessity of proving the criminality of the act charged, but they are not equally clear upon the question of pleading. In Shipp v. McCraw, 3 Murphy, N. C., 463, the defendant had charged the plaintiff with stealing a note in Virginia; and it having been proved that the act was larceny by the laws of Virginia, the majority of the court sustained the judgment obtained by the plaintiff--Hall, J., dissenting upon the ground that the declaration had not set forth “whether or not the stealing of a note in that State was an offense.” But the question of pleadings was not noticed in the opinion of the majority, and they must either have ignored the fundamental principle of all pleading, that the material facts must be set out, or treated the declaration as sufficient after verdict; for it is clear that, unless it was a crime in Virginia to steal a note, there was no slander, and that it was, was a fact to be alleged and proved.

The case of Barham v. Nethersol, 4 Coke, S. C., 20, and Yelv. 22, is often cited. No inducement was set out, and the words charged were: “T. Barham (the plaintiff) hath burnt my barn” (meaning my barn at that time full of corn). Judgment was arrested, because burning a barn was a trespass only, although it was a felony to burn it filled with corn. Had the extrinsic fact that the barn was full of corn been first alleged by way of “inducement,” a foundation would have been laid in the pleading for inferring the meaning of the words; and it would have been good. The doctrine of this decision has been followed in all the leading cases, both in England and the United States, and this court has uniformly recognized it. (See Townsh. Sland., §§ 159, 336-7, and cases cited in the notes; also Palmer v. Hunter, 8 Mo. 512; Curry v. Collins, 37 Mo. 324.) Indeed, I have never heard the general principle doubted, that where words are charged that are not actionable without a knowledge...