Klumph v. Dunn

• Decision Date: 03 January 1871
• Citation: 66 Pa. 141
• Parties: Klumph <I>versus</I> Dunn.
• Court: Pennsylvania Supreme Court

66 Pa. 141

Klumph versus Dunn.

Supreme Court of Pennsylvania.

October 17, 1870.

January 3, 1871.

October 17th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Crawford county: No. 144, to October and November Term 1868 J. B. Brawley and Derrickson, for plaintiff in error.—Words are actionable per se only when they impute an indictable offence: Lukehart v. Byerly, 3 P. F. Smith 418. When words not actionable are laid in the same count as those actionable, it is the same as where there is a general judgment and some of the counts are faulty: Ruth v. Kutz, 1 Watts 489; Stitzell v. Reynolds, 9 P. F. Smith 489; Gosling v. Morgan, 8 Casey 273. The plaintiff should have shown that the offence was criminal in the place in which it was asserted to have been committed: Barclay v. Thompson, 2 Penna. R. 148. Adultery is not indictable at common law: Buys v. Gillespie, 2 Johns. R. 114.

S. N. Pettis (with whom were M. P. Davis and H. L. Richmond), for defendant in error, cited 2 Whart. Crim. Law, §§ 2400. 2648. Words to be actionable need not charge an indictable offence: Beck v. Stitzel, 9 Harris 522.

The opinion of the court was delivered, January 3d 1871, by SHARSWOOD, J.

It is not necessary that all the words laid in the declaration should be actionable. It is sufficient if some of them are. The court below, therefore, were not required either to affirm or deny the defendant's first point as presented: "that all the words charged were not actionable." They answered correctly that the words laid were actionable without saying whether all were. It is true that a general judgment in slander, where some of the counts set out words which are not actionable, is erroneous; but non sequitur that a count in which non-actionable words are laid with those which are actionable is therefore bad. All the words spoken at the time may properly be stated and given in evidence; for they explain and show the animus of the principal charge.

The court below may have erred in their answer to the defendant's second point, in saying that the question whether the words would be actionable if the offence was charged to have been committed in another state without showing that it would be criminal there, did not arise, because no venue was given either in the narr. or in the evidence to the crime imputed: and also in the charge that the evidence did not show where the offence was stated to have been committed. These form the second and third errors assigned. It must be conceded that there was evidence from which the jury might legitimately have inferred that the conversation to which the defendant's witnesses had testified was the same conversation as that referred to by the plaintiff's witnesses, and that taking the whole together the defendant meant to confine his accusation to what had occurred in the South while the plaintiff was with Sherman at Atlanta, or from Atlanta to Savannah. Even Temple, the witness of the plaintiff, testified on his cross-examination that he took it for granted that the conversation was about Sherman's march to the sea-coast. If this was a material question in the cause it was for the jury to decide, and it was error in the court to withhold it from them. But if it was immaterial it did the defendant no injury. The court, as often happens, gave a wrong reason for a right decision.

The case of Barclay v. Thompson, 2 Penna. R. 148, decides that an action will not lie for words spoken in another state when the offence charged is not indictable in that state, although it may be indictable here. To the same effect are Stout v. Wood, 1 Blackford 71; Offut v. Earlywine, 4 Id. 460; Linville v. Earlywine, Id. 469; Langdon v. Young, 33 Vt. 136. The reason is a very plain one. The defendant committed no legal wrong where the words were spoken. No action lay there, and therefore not in any other state in which the defendant might afterwards be found and sued. In this case, however, the words were spoken in this state. It has often been held that where the words impute a common-law offence to have been committed in another state it need not be affirmatively proved that such offence is indictable there. The presumption is, that the common law of a sister state is similar to our own, and in one case it is intimated, though not decided, that if the offence charged derives its quality as a crime from the statute alone, the rule would be otherwise: Johnson v. Dickens, 25 Miss. 580; Van Ankin v. Westfall, 14 Johns. 233; Poe v. Green, 3 Sneed 664; Montgomery v. Dealey, 3 Wisc. 709. But after a careful search, I find no case which directly holds that words charging an offence of moral turpitude, and indictable by the statute law of the country where they are uttered, are not actionable per se, because they state the offence to have been committed in another country. The opinions in some of the cases cited seem to rely upon the liability of the defendant to extradition under the Constitution of the United States, or treaties with foreign states. But that surely is not the true ratio decidendi. Nothing seems to be better settled than that liability to prosecution or punishment is not the criterion. Both ancient and modern cases agree in this.

In Carpenter v. Tarrant, Ridg. temp. Hardw. 339, the words were: "Robert Carpenter was in Winchester goal and tried for his life and would have been hanged had it not been for Leggat, for breaking open the granary of Farmer A. and stealing his bacon." Here the words necessarily imported that the plaintiff had been tried and acquitted, and therefore could never be convicted of the same offence. In Gainford v. Tuke, Cro. Jac. 536, the words were: "Thou wast in Launceston goal for coining." The plaintiff replied: "If I was there, I answered it well." "Yea," said the defendant, "you were burnt in the hand for it." Here the words clearly meant that the plaintiff had been tried, convicted, pleaded his clergy and been burnt in the hand, and of course could not be again punished for the same offence. So in Baston v. Tatham, Cro. Jac. 622, it was held to be no defence to prove that the offence charged was within the terms of a general pardon, for ...