Fowler v. Wallace
| Decision Date | 23 April 1892 |
| Docket Number | 15,039 |
| Citation | 31 N.E. 53,131 Ind. 347 |
| Parties | Fowler v. Wallace |
| Court | Indiana Supreme Court |
From the Greene Circuit Court.
Judgment reversed.
E. H C. Cavins, A. G. Cavins, J. H. Jordan, O. Matthews, W. R Harrison and I. H. Fowler, for appellant.
D. E Beem and W. Hickam, for appellee.
This action was prosecuted by the appellee against the appellant to recover damages for slanderous words uttered and published by the latter of the former.
The questions requiring consideration arise on the ruling denying a new trial.
One of the questions argued by counsel relates to the introduction of an affidavit made by the appellant for a change of venue. The only objection stated in the introduction of the affidavit was that "it is inadmissible." This statement was insufficient. It is settled beyond controversy that specific objections to evidence must be stated, and the objections as stated must be brought into the record on appeal. Ohio, etc., Co. v. Walker, 113 Ind. 196, 15 N.E. 234, and cases cited. Bingham v. Walk, 128 Ind. 164, 27 N.E. 483 (173).
In actions for slander, evidence of the defendant's pecuniary condition is competent.
The court instructed the jury that the appellant must prove his answer of justification beyond a reasonable doubt. It is with reluctance and regret that we yield to the decisions upon this point, and sustain the instruction. It has been so often and so emphatically asserted that the question is so firmly settled that the rule can only be changed by legislation, that we feel bound to adhere to the doctrine of our cases. We are satisfied that the rule grew out of a misconception of principle, and we should be glad to escape from it; and if we were not impelled by duty we should decline to give it our adherence. The decisions are numerous, and their assertions unqualified and strong. Hutts v. Hutts, 62 Ind. 214; Wilson v. Barnett, 45 Ind. 163; Tucker v. Call, 45 Ind. 31; Lanter v. McEwen, 8 Blackf. 495; Wonderly v. Nokes, 8 Blackf. 589; Landis v. Shanklin, 1 Ind. 92; Gants v. Vinard, 1 Ind. 476; Shoulty v. Miller, 1 Ind. 544; Swails v. Butcher, 2 Ind. 84; Tull v. David, 27 Ind. 377. In the latest cases touching the question the court recognizes the existence of the rule in libel and slander cases, speaks of the fruitless attempt to secure its overthrow, and declares that it can not be extended to other classes of cases than actions for libel or slander. Hale v. Matthews, 118 Ind. 527, 21 N.E. 43. The later decisions upon the subject, as we think, recognize the rule as applying to slander and libel cases, but deny its application to other cases. It would certainly do much less evil to leave a change to be made by legislation, inasmuch as such a change, not being retroactive, would not affect pending cases and permit successful appeals or bills of review, while a change by judicial decision would open the way to litigation by appeal, and by proceedings for review in cases wherein judgments have been rendered, but against which the statute that limits the time for appealing or filing bills of review has not operated, we are satisfied at all events, that it is our duty to give the rule stare decisis effect, much as we may favor the unification of rules of evidence.
The court repeated, in seven, or more, instructions, the statement that the appellant must prove the material facts in his answers of justification, beyond a reasonable doubt. In some of the instructions very strong and emphatic language was employed. Thus, in one of the instructions it is said: "To sustain the pleas of justification relied upon by the defendant in this case, in so far as the same alleges the truth of the charges, it is necessary that all of the material allegations of the same shall be established to the satisfaction of the jury beyond a reasonable doubt, and for the purpose of determining that question you may properly regard the plaintiff as placed upon trial under an indictment by the grand jury of the county upon the charge of criminal embezzlement." In another instruction it is said: "The plaintiff occupies the same position, so far as the degree of proof is concerned, under the answers of justification, upon the grounds of the truth of the charge, as if he were on trial upon an indictment for the embezzlement of the money of the bank, for whom he was acting as cashier, and I therefore instruct you, as a matter of law, that where a plea of justification in an action for slander charges the plaintiff with the crime of embezzlement, the defendant must prove the guilt of the plaintiff beyond a reasonable doubt." We all agree that these instructions went farther than the law warrants in repeatedly asserting that the position occupied by the plaintiff was the same as if he had been on trial upon an indictment; at all events we are clear that the iteration and reiteration of the statement so emphatically made, that the plea of justification must be proved beyond a reasonable doubt, gave the statement undue prominence, to the prejudice of the appellant. The repetition of a statement so emphastically and strongly made is very likely to mislead a jury by creating the impression that the judge intends that the statement made by him shall control and be acted upon to the exclusion of other rules. In Powell v. Messer, 18 Tex. 401, it was said: It is probably true that there are cases where the rule stated should not apply, but the case before us is a close one upon the evidence, and we are unable to escape the conclusion that the trial court by so often repeating the doctrine so broadly and strongly stated imposed a greater burden upon the appellant than the law requires him to bear.
One of the instructions given by the court reads thus: In another instruction the court declared that the defendant must prove, among other things, this fact: "That Wallace, while acting as such cashier, did unlawfully, feloniously, and for the wrongful purpose of depriving said bank of the same, take, purloin, secrete, or in some way appropriate to his own use, or to the use of others, or with such felonious knowledge, permit some other person to take, purloin, secrete, or in some way appropriate to his or her own use, or to the use of another, the money of the bank controlled by him as cashier for the purpose of depriving the bank of the same."
These instructions assert that the purpose or intent of the cashier to deprive the bank of its money must have existed at the time of appropriating, purloining or secreting the money. They impliedly assume that there may be a wrongful appropriation of the money of the bank, and yet be no embezzlement, unless at the time of appropriating, purloining or secreting the money the cashier intended to deprive the bank of it without compensation.
The instructions are certainly misleading in asserting, as they do, that money may be purloined or secreted by a bank cashier, and there be no crime unless the intent to eventually deprive the owner of its money exists in the mind of the purloiner. We suppose it clear that where a cashier purloins and secretes the money of the bank, there is guilt, no matter what may be his intention as to ultimately depriving the bank of its property. He can not wrongfully purloin and secrete money without becoming, prima facie, at least, an embezzler. But we think that the instructions would have been erroneous if the words purloin and secrete had not been employed. We regard the instructions as erroneous because they convey the meaning that, although there may be a wrongful appropriation or conversion of the money of a bank by its cashier, there is no crime unless there was an intention to deprive the owner of the money wrongfully appropriated or converted.
The wrongful or negligent violation of a rule of a bank by a cashier in lending money to himself or to others does not necessarily make him an embezzler, nor does the fact that he may not be able to account for all money that may come into his hands make him guilty, per se, of embezzlement. There must, in order to constitute the crime, be, either at the time of receiving the money or at some subsequent time some element of fraud or evil intention. If there is no fraudulent purpose or evil intention, there is no crime. But in going thus far we go to the utmost verge of the...
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