Rea v. Harrington

• Decision Date: 10 February 1886
• Citation: 2 A. 475,58 Vt. 181
• Parties: J. P. REA v. JOEL HARRINGTON
• Court: Vermont Supreme Court

2 A. 475

58 Vt. 181

J. P. REA v. JOEL HARRINGTON

Supreme Court of Vermont, Montpelier

February 10, 1886

Action for slander. Plea, not guilty. Trial by jury, December Term 1883, Caledonia County, ROSS, J., presiding. Judgment on verdict of guilty. The defendant's third request mentioned in the opinion, was: "That there could be no recovery as to the crime of abortion, or any attempt to commit abortion, because the declarations did not properly charge the crimes; that if any was committed it was outside the State: that the declaration did not charge the plaintiff knew or supposed the daughter to be pregnant." The exceptions stated as to provocation: "To bear upon the question of damages and provocation the defendant offered to prove that for some time prior to March 28, 1883, and a few days before, the plaintiff had been accustomed to make slurring allusions to defendant's wife Mary; that he would ask about 'old Mary and the calves; that he would allude to defendant's stealing cattle and sheep." The exceptions stated as follows as to counsel going outside the proof: "No proof was permitted as to the ownership of the farm upon which the defendant lived in Walden. Upon his cross-examination by plaintiff's attorney, defendant volunteered to say that he was a poor hen-pecked old man, who lived with his boy and wife, and could not pay a cent any way. The plaintiff's attorney, in closing his last argument, said, if Harrington, defendant, was poor and had no money to pay a verdict, he should not have deeded his farm to his wife to put it out of the way of creditors, as defendant had done. The presiding judge was at this time in the adjoining room. The defendant's counsel tried to stop this speech of Mr. Lamson, but could not until the presiding judge was called in. The presiding judge informed Mr. Lamson and the jury, that he could not discuss the matter objected to, and must confine his argument to evidence properly in the case. The defendant duly excepted to this conduct of Mr Lamson, and the same was allowed by the court. Mr. Lamson said no more as to this subject after this intimation of the court."

Bates & May, for the defendant.

The crime of incest is incomplete without one of the parties at least having knowledge of the relationship. This knowledge must be alleged, or the defect is fatal on demurrer or motion in arrest. Townsh. Sland. & Lib. 190; Hill, Torts, 264; Griggs v. Vickroy, 12 Ind. 549. We also question whether the crime of incest could be charged upon a married man under the statute law, which reads thus: "Persons between whom marriages are prohibited, etc., who intermarry or commit fornication with each other shall be punished as in case of adultery." Fornication occurs only where there is no marriage. 2 Bish. Cr. Proc. s. 728. It has been questioned whether a charge of incest is slanderous. Townsh. Sland. & Lib. s. 163, p. 230, note 3. It was error to permit the proof of speaking the slanderous words subsequently to bringing the suit. Frazier v. McCloskey, 60 N.Y 337; Root v. Lowndes, 6 Hill, 518; Keenholts v. Becker, 3 Denio, 346; Sedg. Dam. (5 ed.) 111; Schenck v. Schenck, 20 N. J. Law, 208; P. W. &. B. R. R. Co. v. Quigley, 21 How. 202 (62 U. S. L. ed. bk. 16, L. ed. 73). It was error to exclude the evidence as to the defendant's property. Johnson v. Smith, 64 Me. 553; Stanwood v. Whitmore, 63 Me. 209; Brown v. Barnes, 39 Mich. 211; S. C. 33 Am. Rep. 375; Bump v. Betts, 23 Wend. 85; Bennett v Hyde, 6 Conn. 24; Kniffen v. McConnell, 30 N.Y. 289; 2 Greenl. Ev.; 2 Phil. Ev. 258. It was also error to allow the plaintiff's evidence as to his mental sufferings. Bovee v. Danville, 53 Vt. 183; G. C. & Santa Fe R. Co. v. Levy, 59 Tex. 542; S. C. 46 Am. Rep. 269. The defendant should have been allowed to show provocation. Townsh. Sland. & Lib. 688; Thomas v. Dunaway, 30 Ill. 373; Whittemore v. Weiss, 33 Mich. 348; Botelar v. Bell, 1 Md. 173; Pugh v. McCarty, 40 Ga. 444. The fact that counsel went outside the evidence in his argument should be held fatal error. State v. Hannett, 54 Vt. 83; Scripps v. Reilly, 35 Mich. 371; S. C. 24 Am. Rep. 575; Brown v. Swineford, 44 Wis. 282; S. C. 28 Am. Rep. 582; Coble v. Coble, 79 N.C. 589; S. C. 28 Am. Rep. 338; Cleveland Paper Co. v. Banks, 15 Neb. 20; S. C. 48 Am. Rep. 334.

J. P. Lamson, for the plaintiff.

There was no error in admitting evidence that the defendant repeated the slanderous words. Knapp v. Fuller, 55 Vt. 311; Driggs v. Burton, 44 Vt. 144; Cavanaugh v. Austin, 42 Vt. 576. The plaintiff had a right to state what effect the words spoken had on him. Nott v. Stoddard, 38 Vt. 25.

OPINION

VEAZEY, J.

The declaration is for slander. The defendant demurred, and the demurrer was overruled, to which the defendant excepted. The defendant was then allowed to plead the general issue and go to trial on the merits, which resulted in a verdict for the plaintiff. Thereupon, a motion in arrest was filed which was overruled, and the defendant excepted. He now claims to test the sufficiency of the declaration under the exception to overruling the demurrer.

1. By pleading over and going to trial instead of submitting to judgment on the declaration the defendant waived his exception to the ruling on the demurrer. A verdict may cure defects which would render a declaration demurrable. After verdict every reasonable presumption is made in favor of the sufficiency of the pleadings. Brown v. Hitchcock, 28 Vt. 452; Morey v. Homan, 10 Vt. 565.

Moreover, on demurrer to any of the pleadings, which go to the action, the judgment for either party is the same as it would have been on an issue in fact, joined upon the same pleading and found in favor of the same party. Gould Pl. ch. 9, s. 42.

When cast upon his demurrer a defendant is not entitled of right to plead over. If the court extend the favor against the plaintiff's right to judgment, it would be unjust to put the plaintiff to the expense and risk of trial and then after favorable result subject him to the risk of the demurrer for defects that a verdict cures where there is no demurrer.

The sufficiency of this declaration can be tested only under the rules applicable to the motion in arrest.

2. The first assignment of error in the motion is as follows: "It is not alleged in the declaration nor proved on trial, that in speaking the alleged slanderous words as to the alleged incest, the defendant said the plaintiff had carnal intercourse with his daughter Sadie with knowledge of the relationship."

This assignment correctly assumes that incest is made a crime in this State. R. L. s. 4246. It is undoubtedly true, that knowledge of the relationship is essential to constitute the crime. Such allegation is not in terms in the declaration; but it is alleged that the plaintiff was a married man, and had a daughter living in his family by the name of Sadie Rea * * * who had arrived at the age of seventeen years. * * * It is also stated in the bill of exceptions that it was conceded that plaintiff was married in 1864; that his wife was still living; that the plaintiff was never divorced; and that Sadie was their daughter now eighteen years old. Defendant's first request to the court for instructions to the jury was to the effect that plaintiff's knowledge of the relationship was essential to create the crime of incest. The exceptions state that on the subject of the requests the court told the jury what was necessary to constitute a charge of the several crimes named in the requests. The charge of the court, therefore, must have included the element of knowledge of the relationship. Judgment will not be arrested after verdict, for lack of an essential averment in the declaration which is contained by implication in the averment used, or which may be considered to have been proved as a part of what is alleged. Morey v. Homan, supra; Curtis v. Burdick, 48 Vt. 166.

The averment implied knowledge of the relationship, the concession tended to show it, and the charge must have included it as an essential element. This exception therefore cannot be sustained.

3. The second and third assignments of error in the motion in arrest may be treated together and were as follows: "There was no proof and no allegation in the declaration that the said Sadie was ever with child or had a child born alive, or that there could have been or was any attempt at abortion, or any murder of any person, or any attempt to conceal any murder, or any person or child to murder."

"Third: There was no proof that Sadie was pregnant or had been, or that her father or any one else supposed her to be pregnant, or that any person who heard the discourse believed or had reason to believe that she had been or was pregnant."

The defendant's second request to charge covered the same point.

The claim is that, as there was no proof as to any murder or an attempt to commit murder, etc., and no hearer understood or believed there was any person to murder, the words charged did not constitute slander. The effect of the claim is, that because it was not true as charged in substance by defendant that plaintiff's daughter had a child begotten by the plaintiff, which he killed and threw to the pigs, it was not a slander to make the charge: especially, if the hearers did not believe it.

Although there is some qualifying authority, we think the sound rule is, that if the words impute a crime they are actionable per se, even though the charge could not be true. It is the obloquy of the charge that produces the damage, and not the exposure to punishment. Eckart v. Wilson, 10 Serge. & Rawle 44; Carter v. Andrews, 33 Mass. 1, 16 Pick. 1. In the case last cited, SHAW, Ch. J., says: "But it is no defence to this action that the charge could not be true."

Neither does the...