State v. Boogher

• Decision Date: 20 March 1877
• Citation: State v. Boogher, 3 Mo. App. 442 (Mo. App. 1877)
• Parties: STATE OF MISSOURI, Respondent, v. DAVIS R. BOOGHER, Appellant.
• Court: Missouri Court of Appeals

3 Mo.App. 442

STATE OF MISSOURI, Respondent,

v.DAVIS R. BOOGHER, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 20, 1877.

1.An individual may be prosecuted criminally for a libel upon a business corporation, without an allegation that the corporation has been injured thereby.

2.In an action for criminal libel, counts for distinct offenses may be joined in the same information, and the defendant sentenced for more than one offense at the same time; but there should be separate findings, and the judgment should apply each penalty to its own offense.

3.Where the judge who tries a cause dies after a motion for a new trial has been overruled, but before the bill of exceptions has been signed and before the time allowed for filing the same has expired, the succeeding judge should grant a new trial.

APPEAL from St. Louis Court of Criminal Correction.

Reversed and remanded.

Marshall & Barclay, for appellant, cited: 2 Whart. Cr.Law, 7th ed., sec. 2540, c;4 Bla. Com. ^*150;Trenton Co. v. Perrine, 23 N. J. L. 408;Rammell v. Otis, 60 Mo. 365;Pollard v. Lyons, 3 C. L. J. 107;United States v. Maguire, 3 C. L. J. 273;The State v. Palmer, 4 Mo. 453; Wag.Stat. 1089, secs. 21, 23, p. 886, sec. 2;Tweed v. Lipscomb, 60 N. Y. 559;3 Whart. Cr.Law, 7th ed., sec. 3397;Acts relating to St. Louis County, 130, secs. 31, 32;In re Jilz,3 Mo.App. 243;Const. 1865, art. 4, secs. 27,32;Kingmen v. Abington, 56 Mo. 46.

H. A. Clover, F. J. Bowman, and C. P. Johnson, for respondent, cited: 1 Whart. Cr.Law, sec. 415, and cases cited;2 Whart. Cr.Law, sec. 2540, c; Commonwealth v. Sylvester, Bright.331;The State v. Ambs, 20 Mo. 214.

HAYDEN, J., delivered the opinion of the court.

This is a criminal prosecution for an alleged libel upon the Life Association of America, a corporation engaged in the life insurance business.There are five counts in the information, only the first, third, and fifth of which need be considered.Each of these three counts charges a distinct offense, and sets out different matter.The form of the counts is substantially as follows:

“That * * * Davis R. Boogher, etc., * * * being persons of envious * * * minds and of most malicious dispositions, maliciously * * * intending as much as in them lay to injure, vilify, and defame the credit and business reputation of the Life Association of America, a corporation duly chartered according to the laws of the State of Missouri, wickedly, maliciously, and unlawfully did write and publish, and cause and procure to be written and published, a certain false, malicious, and scandalous libel of and concerning the said Life Association of America, on or about the 13th day of March, 1875, at St. Louis aforesaid, according to the tenor and effect following: [here follows the alleged libel, which purports to be a statement of the facts recited in an application by policy-holders to the State Insurance Department, praying an examination of the affairs of the Life Association] against the peace and dignity of the State.”

The case was tried by Judge Colvin and a jury, and a verdict rendered, by which the jury found the appellant guilty as charged in the first count of the information, and assessed his punishment at a fine of $50; guilty as charged in the third count, and assessed the punishment at two months' imprisonment; guilty as charged in the fifth count, and assessed the punishment at a fine of $100.Upon this verdict the court adjudged that the appellant pay a fine of $150, and be imprisoned in the work-house of the city of St. Louis for two months.On March 14, 1876, the appellant filed his motion for a new trial, which motion was, March 23d, overruled.On March 24th an appeal was granted to this court, ten days being allowed to appellant within which to file his bill of exceptions.On April 3, 1876, upon a stipulation to that effect filed by counsel, twenty days' further time was given to appellant to file his bill of exceptions.On September 16th a bill of exceptions was presented to the court for allowance and signature, but the court refused to allow or sign it.Upon this the appellant, by leave of court, filed a motion for new trial.On November 18th this motion for new trial was overruled.On November 29, 1876, an appeal was allowed to this court, and a bill of exceptions filed, which appeal is the present appeal.

The facts that have rendered the recital of these matters necessary are that on March 27, 1876, Judge Colvin became ill, and was unable to do duty afterward; that on March 29th James C. McGinnis was appointed provisional judge; that on April 12th Judge Colvin died; that Judge Cady, having been appointed in Judge Colvin's place, entered on the discharge of his duties on April 24th.The bill of exceptions presented to Judge Cady, and by him signed on November 29th, contains the contents of the paper which he had refused to allow as a bill of exceptions, and sets out facts as above.This paper had previously been presented to the counsel for the prosecution, on April 26th, when they refused to consent to it, they contending that it was not full or correct.

The appellant suggests the question, but appears not much to rely upon the point, whether a corporation, as such, can be the subject of a criminal libel.At the present day there can be no doubt that it may.The reasons why it should are not so numerous as in the case of a natural person, but those which exist are as strong.A very large and important part of the private business of the community is now done under the form of corporations.The reputation of persons who employ this form is as important to them as is to him that of a person who deals in his individual capacity.On the other hand, the public mischief, the danger to good order and to the peace of the community, arises as well from malicious defamation of private corporations as from libelous attacks on natural persons.Moreover, as business acts and relations involve moral and personal conduct, it is not merely in reference to their business that persons might be defamed without redress, were libels on private corporations permitted.It would be against the reason of the law, if, under the guise of attacking a mere legal entity, a libeler should be allowed to do a wrong to many which he could not safely perpetrate in reference to an individual.The objection, in truth, arises from conceptions which the different functions now accomplished by the corporate form have rendered obsolete, and we have no hesitation in holding that a person may be criminally prosecuted for libel upon a business corporation.See2 Bishop's Cr. Law, 6th ed., sec. 934;2 Whart. Cr.Law, 7th ed., sec. 2540;23 N. J. L. 407;9 Minn. 133.

It is next urged that there was no averment of special damage suffered by the corporation.But the rule invoked by the appellant, that, where the words are not in themselves actionable, special damage must be averred, is not applicable to a criminal prosecution for libel.Here the ground of the proceeding is not any damage sustained by the subject of the libel, nor is it even any injury actually done to the public.If it should appear that no damage was done to the person or corporation libeled, and that the public peace was not in fact disturbed, this would not defeat the prosecution.The ground of the criminal proceeding is the public mischief which the libel is calculated to produce, not that which it actually produces.

The points next to be considered are whether the counts charging separate and distinct offenses may be joined in one information, and whether, the jury having separately found the defendant guilty on three of these, and assessed distinct penalties, the court could render judgment to the full extent of the penalties so awarded.It is claimed that there was error in these respects, and we are referred to the cases of The People ex rel. v. Liscomb, 60 N. Y. 599, andUnited States v. Maguire,3 C. L. J. 273.The Supreme Court of this State appears to have come, many years ago, to an opposite conclusion to that arrived at by the New York Court of Appeals as to what was the common law of England on these points; and an examination of the English authorities will confirm the opinion of our Supreme Court.It is noticeable that the language used by Lord Ellenborough in Rex v. Jones,2 Camp. 131, though the case is not referred to, is substantially adopted by the Supreme Court in Storrs v. The State,3 Mo. 9.Lord Ellenborough said: “In point of law there is no objection to a man being tried on one indictment for several offenses of the same sort.It is usual in felonies for the judge, in his discretion, to call upon the counsel for the prosecution to select one felony and to confine themselves to that, but this practice has since been extended to misdemeanors.It is the daily usage to receive evidence of several libels, and of several assaults, upon the same indictment,” etc.No English cases appear to have been found denying this rule, and many are found which directly or indirectly confirm it, and show clearly that in cases of misdemeanor, at least, counts for distinct offenses may be joined in the same indictment, and the defendant sentenced as for more than one offense at the same time.Rex v. Wilkes,4 Burr. 2527;Young v. The King,3 Term Rep. 98, perLord Kenyon;The King v. Johnson,3 Mau. & Sel. 539;Regina v. Cutbush,10 Cox C. C. 489.In The Queen v. Castro, alias Orton, alias Tich...