Jones v. Murray

• Decision Date: 19 February 1902
• Citation: 167 Mo. 25,66 S.W. 981
• Parties: JONES v. MURRAY.
• Court: Missouri Supreme Court

66 S.W. 981

167 Mo. 25

JONES v. MURRAY.

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

LIBEL — ACTIONABLE WORDS PER SE — MALICE — MITIGATION — EFFECT — EVIDENCE — CONDUCT OF ATTORNEY — REMARKS — INSTRUCTIONS — DUTY OF COURT.

1. A false publication that a person is implicated in a robbery and murder, and referring to him as "robber number three, who killed the farmer," is libelous per se, from which malice is implied.

2. When a part of a plea in mitigation of a libel contains matters properly admissible in mitigation, a motion to strike out the whole plea is properly denied.

3. The court must instruct that evidence of defendant's good faith in publishing a libel is admissible only in mitigation of exemplary damages.

4. Where a plea in mitigation of a libel alleged that a certain person became suspicious that plaintiff and another had committed the crime charged in the libelous article, and had informed officers of such suspicions, together with his reasons therefor, and defendant's reporter testified that such person gave to him these matters before the publication, it was error not to permit plaintiff to show that such person did not communicate with the reporter.

5. A plea in mitigation of a libel, that the officer who furnished defendant's reporter with the alleged facts on which the libelous article was based knew of plaintiff's bad reputation, was not sustained by the evidence, the record not disclosing that the officer knew plaintiff's reputation, and another officer testifying that he had heard nothing against plaintiff except that he occasionally got drunk.

6. A plea in mitigation of a libel, alleging that the officer who furnished defendant's reporter with the alleged facts on which the libelous article was based submitted the information in his possession connecting plaintiff and another with the crime charged in the article to the county prosecuting attorney, who stated that the facts justified the arrest of plaintiff and such other person, is not sustained by the evidence, the record containing no testimony that the prosecuting attorney gave such advice.

7. The remarks of defendant's counsel at the trial for libel, that plaintiff committed the murder charged in the alleged libelous article, should have been rebuked by the court, and the jury informed that the evidence did not sustain the charge.

8. Though the constitution provides that in an action for libel the jury shall be the judges of the law and the facts, the court must properly and carefully advise the jury as to the law.

Appeal from circuit court, Greene county; C. B. McAfee, Judge.

Action by George Jones against L. H. Murray. From a judgment for defendant, plaintiff appeals. Reversed.

This is an action for $5,000 damages for a libel of the plaintiff published in the Springfield Republican on September 22, 1898. The defendant is and was the owner of the paper. The libel is as follows: "A Murderer Captured — Officer Foster Burns Arrested Charles Carroll for Duffner Tragedy — He is a Cousin of the Notorious Jones Boys — George Jones Implicated — He is Robber Number Three, Who Killed the Farmer — He has Skipped the Country. One of the murderers of Charles Duffner, the Dallas county farmer, is confined in the Greene county jail. The arrest was made at 11 o'clock Tuesday night by Deputy Constable Foster Burns and Constable George Green at the Farmers' Home, a boarding house on North Campbell street. There is little doubt but Officer Burns has placed behind the bars one of the daring robbers and will capture the other robber. The man now in jail is named Charles Carroll, son of Henry Carroll, who lives three miles south of Buffalo and about eight miles from the Duffner home. Ever since the murder of Mr. Duffner last Thursday Officer Burns has been on the lookout for the culprits, and Monday his vigilance was rewarded by hearing that two Dallas county boys had been boarding at the Farmers' Home. They gave their names as George Jones and Charles Carroll. The officer ascertained that they arrived in the city the 1st of September, and two days later left the boarding house, telling the proprietor that they were going to work in the Gulf shops, and would board on the south side, but they told several people they were going to Christian county, and also stated they were going to Galena, Kan. Nothing was heard of the men until Monday, September 12, when they were seen by Mr. Williams, proprietor of the Farmers' Home boarding house, who saw them going east on Commercial street. Next heard of the men was last Saturday night, when they returned to the Farmers' Home with their clothing in a muddy condition. Carroll's shirt was badly torn and had blood on the front. They took a room and changed their clothing. Both Carroll and Jones were in a state of anxiety and very nervous. Sunday morning Jones left the boarding house, stating he was going home, and Carroll remained. Officer Burns learned that the two men had been stopping at Mr. Williams' place. He was acquainted with them, having been raised in that section of Dallas county, and his suspicions were aroused that they might be implicated in the Duffner tragedy, and after a thorough investigation became convinced that they were implicated in the murder, and Tuesday night placed Carroll under arrest. George Jones is a son of Sam Jones and a brother of the notorious Jim Jones, who killed the Texas sheriff and his deputy, and is believed to have been implicated in the Duffner affair. Carroll is a cousin of the Jones boys. Deputy Constable Burns found a valise at the boarding house which contained three shirts, two pair of pants, a pair of shoes, and stale bread. The shirts had blood on them, and were taken to Prosecuting Attorney Wear's office, where that gentleman heard the story and stated he believed Carroll was one of the robbers and advised that Otto Duffner, a son of Charles Duffner, be notified to come to Springfield and identify the prisoner. The officers are satisfied that Carroll is the man whom Otto Duffner held while his father struggled with the robber, on whom he succeeded in inflicting fatal wounds. When Carroll was placed under arrest by Officer Burns he became very much agitated and acted like a guilty person. Mr. Burns was raised in the neighborhood of the Jones and Carrolls and well acquainted with the family. Charles Carroll is about 25 years of age. He said he was innocent of the crime for which he was arrested and would be able to prove an alibi. While he was told he would be taken to Dallas county he became very pale and said he did not want to go there. Officer Burns telegraphed to Buffalo yesterday morning to the sheriff notifying him to arrest George Jones, who is robber number three, the one who killed Duffner. The officer believes that Jones has skipped the country and had no idea of returning home. Otto Duffner is expected to arrive in the city to-day to identify Carroll. When the attempted robbery occurred the robbers wore false beards, and it may be difficult for young Duffner to identify him. Although living within eight miles of each other, Carroll stated yesterday be was not acquainted with the Duffner family. The capture of Carroll, if he proves to be one of the robbers, is a neat piece of detective work, and Officer Burns will receive a reward of $500 from the county and widow of Charles Duffner."

The second amended answer, upon which the case was tried, is as follows: "Now comes the defendant, and for amended answer to plaintiff's petition denies each and every allegation therein contained. Wherefore he prays judgment, and for further answer to said petition the defendant pleads the following mitigating circumstances, to wit: That about sundown of Thursday, September 15, 1898, in the county of Dallas and state of Missouri, there was committed a most foul, bloody, cruel, and cowardly murder; that at said time and place one Charles Duffner, his wife and son, were assaulted by two masked robbers, and one of the robbers shot at and tried to kill Miss Duffner; that after a hard struggle one of said robbers was killed and the other was overpowered and captured; that the son of said Charles Duffner was then dispatched to arouse the neighbors and fetch the officers of the law; that thereupon a third robber appeared upon the scene and shot and killed Chas. Duffner and liberated his companion in crime. The murderers then fled on horses belonging to the Duffner family to a point about two miles north of the scene of the tragedy, and then killed the said horses and mounted their own animals and rode away. That on account of the masks and excitement the family were unable to fully describe the murderers, but in their flight they dropped a sack which contained some crusts of bread and three tin cups; that on said tin cups was engraved or cut the name of the Mrs. Sprague children; that plaintiff herein is the uncle of said children. That on or about September 1, 1898, the plaintiff and one Chas. Carroll, both being residents of Dallas county, Missouri, and living about 10 miles north of the scene of the tragedy, left their homes in said county and came to Springfield, where they remained for some days; that during this time they boarded at a house kept by one Williams, and during said time they made contradictory statements as to where they intended going; that upon leaving Springfield they landed at Nixa on or about Saturday, September 10, 1898; they were supposed to have been next seen in Springfield on Monday, September 12th, or Tuesday, September 13th; they hired to one Jerome Bolin near Nixa, and on Wednesday, September 14, 1898, they quit work at the threshing machine and went to Nixa, where they began drinking heavily; that they were not seen again from Wednesday afternoon until Friday morning, September 16th, when they again reported for work at the threshing machine in Christian county, but again quit work that day and started to Springfield,...