State v. DeRry
| Decision Date | 08 February 1886 |
| Parties | STATE OF MISSOURI, Respondent, v. PETER M. DERRY, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from Carroll Circuit Court, HON. JAMES M. DAVIS, Judge.
Affirmed.
Statement of case by the court.
This is an indictment, under section 1590, Revised Statutes, for falsely and maliciously charging one Fannie White with fornication.
The defendant was convicted, and sentenced to pay a fine of five hundred dollars. He has appealed to this court.
The evidence tended to show that the defendant was either engaged to be married to said Fannie, or had been paying her attention as a suitor. Some time prior to the finding of this indictment the defendant told his brother, J. W. Derry, that the reason he withdrew his attentions from her was that she had had sexual intercourse with some hired hand. The evidence for the state left it much in doubt as to whether defendant, at the time of the utterance, gave the name of his informant, or as to any explanatory language. He claims, and testified, that he did but repeat the slander, and that he gave his author. But he admits, and all the proof shows, that he knowingly gave the name of the wrong man as his author, and when taken before the man whom he gave as his informer, was contradicted by him.
The defendant himself gave circulation to the derogatory rumor by going to Fannie White and telling her that he had heard some bad story about her, and thereby starting her father out to investigate the charge and trace out its author.
HALE & SONS and J. W. SEBREE, for the appellant.
I. The indictment is bad; it does not sufficiently charge a publication. It is not alleged that the language was spoken to J. W. Derry, nor in his hearing. 2 Chit. on Plead. 635; Hailey v. Fuller, 2 Hun (N. Y.) 519; Broderick v. James, 3 Daly (N. Y.) 481.
II. There is no evidence that the person spoken of was an unmarried woman. This is one of the essentials to possible guilt.
III. The indictment charges that defendant spoke the scandalous language; and all the evidence discloses that he merely repeated what had been told him. This is a material variance, and operates to prejudice of defendant in making a successful defence. Watson v. Mussick, 2 Mo. 29. At common law written slander by the author, or one repeating it, is alike punishable by fine, etc. 2 Chit. on Bl. 151; Roscoe on Crim. Evid. 597. And sections 1591 and 1592, Revised Statutes, in respect to written slander, is declaratory of the common law, and repeals the common law upon the subject of libel. And section 1592 makes it an offence for one who repeats a written slander as well as the author of it. But verbal slander is not indictable at common law. Hence, section 1590, Revised Statutes, is purely a statutory offence, and must be strictly construed. And this does not in express language, nor by necessary implication, make it any offence to repeat a verbal slander. Maguires v. Savings Association, 62 Mo. 346.
IV. What defendant said to his brother was a confidential communication, and is not an indictable offence, nor could the legislature constitutionally make it so. No power of legislation can destroy the rights of friends, husbands and wives, parents and children, brothers and sisters to confidentially communicate with each other. Commerce, business, matters of state, domestic and social relations, depend, in a large measure, for security and satisfaction upon secret, confidential intercourse. Where a communication is made bona fide, in answer to inqui ries from one having an interest in the information sought, or where the relations between the parties * * * render it reasonable and proper that the information should be given, it will be regarded as privileged. Lewis v. Chapman, 16 N. Y. 374; Clap v. Develin, 35 N. Y. Sup. Ct. Rep. 170; Jarvis v. Hathaway, 3 Johns. 180; 2 Greenl. on Evid. (13 Ed.) 383, note 1; Wharton's Crim. Law, 845, et seq.; 1 East. Rep. 616-617, and cases cited.
V. Defendant was fined five hundred dollars and sentenced to three months in county jail. The punishment is excessive.
No brief appears on file for the respondent.
I. Objection is made to the indictment on the ground that it does not allege that the words were spoken in the hearing of any one. It is true that in the first part of the indictment, where such averment is usually made, it is only charged that the speaking was in the presence of J. W. Derry, etc. But this is followed up in the succeeding portion of the bill with the averment, that the defamatory character and meaning imputed to the language, “was so understood by the said J. W. Derry and others, in whose presence and hearing the said false and slanderous words were so, as aforesaid, by the said Peter M. Derry falsely and maliciously spoken.” This, we think, was sufficient, especially after verdict. State v. Jansen, 80 Mo. 97.
II. It is claimed that the record fails to show there was any proof that Fannie White was an unmarried woman, which was essential to support the charge of fornication. It is true no witness, in so many words, testified that she was a single woman; yet there were facts and circumstances in evidence from which the jury could well have found the existence of this fact had defendant made any question of it by an instruction. The defendant himself testified that he was engaged to her in a contract of marriage, and was visiting her as a lady receiving attention from young men. She was in society as a girl of twenty years of age. The evidence also shows that she was an inmate of the family of her father, and was under his protection. The defendant raised no such question either in any instruction, out of the eighteen asked by him, nor in his motion for new trial. We cannot disturb the verdict on this objection.
III. It is urged that there is a variance between the words alleged in the indictment and the proof. This criticism is based on the assumption that the proof showed that defendant merely stated that he heard so and so, whereas the indictment charges as if he uttered the words without qualification. The record does not support this objection. The defendant's brother, to whom the words were spoken, testified that defendant used the identical words affirmed in the indictment. And the way in which the witness gave the language conveyed no impression that it was repeating the words of some one else. On inquiry as to his author, the defendant gave the name of one Wilson. It was not necessary that the indictment should allege more than the substantive matter of the slander, giving the whole sentence and sense. The sense of the words employed, the manner and attending circumstances of the utterance, and any explanation made by the defendant afterwards in the same conversation, were all matters of defence.
IV. In this connection we will dispose of the suggestion made, and enforced with much zeal, that as verbal slander was not indictable at common law, we must look alone to the statute for this offence, and as the statute does not in terms, or by necessary implication, make it an offence to repeat a verbal slander, therefore, if the defendant only repeated what somebody else told him or said, the indictment is not sustained.
If the statute merely limited the offence to bringing a false charge or accusation, there would be some plausibility in the position. But the statute (sect. 1590, Rev. Stat.) states...
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