State v. Fitzgerald
| Decision Date | 25 January 1886 |
| Citation | 20 Mo.App. 408 |
| Parties | STATE OF MISSOURI, Respondent, v. J. J. FITZGERALD, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Johnson Circuit Court, HON. JOHN E. RYLAND, Judge.
Reversed and remanded.
The case is sufficiently stated in the opinion of the court.
S. P SPARKS, for the appellant.
I. In cases of written or printed libel the proof must agree with the indictment in every particular essential to the identity and a variance in any of these particulars is fatal. Greenl. Evid., sect. 167 (Ed. 1868); 1 Bishop Crim. Proc., sect. 530 (Ed. 1880). Neither " frod," nor " frad," is idem sonans with fraud, set out in the information. The information should have averred precisely the word as it was written and explained by innuendoes. Greenl. Evid. supra; Bishop Crim. Proc. supra. The same rule applies to words spoken in slander. Christial v. Cring, 80 Mo. 367.
II. The court erred in permitting witnesses to testify what they understood the word, as written in the hotel register, to mean. The innuendoes cannot extend the sense of the words beyond their proper meaning--they are not the subject of proof. Whether the libel relates to the matters so averred, is a question of fact for the jury. Greenl. Evid. supra, sect. 175; Bishop Crim. Proc., sect. 793; Abbott's Trial Evid. 664; Cooper v. Greeley, Denio, 819.
III. The state offered no evidence as to the falsity of the alleged libelous matter. The laws presumed the defendant innocent until proven guilty. Bishop Crim. Proc., sect. 1046-1050. The instructions given for the state all ignored the element of falsity. The instruction refused to defendant was the embodiment of the law.
B. G. BOONE, Attorney-General, and EMMET PHILIPS, for the respondent.
I. The objection to the witnesses testifying what they understood the word fraud to mean was properly overruled. The mere writing of the word would not be actionable per se, and only by an inquiry as to the meaning it conveyed to those who saw it, could a conclusion be arrived at by the jury as to the intention of the writer.
II. There was not a fatal variance between the indictment and the proof. Although the word " frod" was used, the meaning and signification was the same as fraud, besides some of the witnesses say the writing was fraud. In either case this court will not interfere with the verdict.
III. The instructions for the state presented the case fully and fairly to the jury, and those refused were properly refused, as they asked only what had already been given. Harrison v. R. R., 74 Mo. 364; Noble v. Blount, 77 Mo. 235.
The defendant was indicted, tried and convicted for a libel on one A. F. Dean, who was an insurance agent, registered at defendant's hotel, known as the " Bell House." The registry, as appears from the charge, was " A. F. Dean, of St. Louis." The libel consisted in writing the word " fraud" after the registry, so that it appeared upon the book as " A. F. Dean, St. Louis, Fraud."
The evidence tended to show that Dean was compelled to leave the hotel almost immediately after he had registered his name on account of the offensive conduct of defendant. That defendant wrote the word " fraud" on the register and then called the attention of divers parties to what he had done among others, to those mentioned in the indictment. Evidence was admitted over defendant's objection as to what the witnesses understood to be meant by the word fraud at the place and in the connection in which it appeared. There was likewise evidence tending to show that the matter written by defendant was not fraud, but " frod," or " frad," and defendant himself testified that he wrote " " frod; " that it was a private mark of his own which he used to indicate that the party...
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