Appeal from Circuit Court, Phelps County; J. H. Bowron, Judge.
"Not to be officially published."
Charles Richter was convicted of criminal libel, and he appealed to the Court of Appeals, which transferred the case to the Supreme Court on the ground that a constitutional question was properly raised. The Supreme Court decided otherwise, and remanded the case to the Court of Appeals .
Reversed and remanded.
SMITH, J.
This is the second time this case is before us. When first here we decided there was a constitutional question in the case, and for that reason we transferred the case to the Supreme Court. See 27 S.W.(2d) 708, for our opinion. The Supreme Court, in consideration of the case in an opinion not yet published [in State Report] but handed down by that court on December 20, 1930 held that the constitutional question, if any there was in the case, was
not properly raised, and therefore was not properly before this court, and sent the case back to this court for consideration.
The defendant was arrested and was tried before a justice of the peace in Howell county under a charge of criminal libel. He was convicted and appealed to the circuit court. A change of venue was had from that county, and, upon a conviction in Phelps county, he appealed to this court. He was fined $1 in the justice of the peace court, and $25 in the circuit court.
The information upon which the defendant was convicted is as follows:
"Information.
"Before George Halstead, a Justice of the Peace of Howell Township, Howell County, Missouri.
"State of Missouri vs. Charles Richter.
"H. D. Green Jr., Prosecuting Attorney within and for the County of Howell and state of Missouri, upon his oath of office based upon the affidavit of Roy Chestnut, informs George Halstead, a Justice of the Peace within and for said County of Howell and State of Missouri, that Charles Richter of said County of Howell on or about the 30th day of December 1926, at the said County of Howell and State of Missouri, did then and there, contriving and intending maliciously to defame, said Roy Chestnut and to provoke him to wrath, expose him to public hatred and to deprive him of the benefits of public confidence and social intercourse, did then and there wilfully and maliciously publish of and concerning Roy Chestnut, a false, defamatory and malicious libel in the form of a letter or communication in writing, tending to provoke the said Roy Chestnut to wrath, expose him to public hatred and contempt and to deprive him of the benefits of public confidence and social intercourse, the tenor of said libel in writing is this:
"`I know all of Chestnut's lieing story. Well I want him to go to the Prosecuting Attorney or I will go yet. There is no lower thief than a milk thief, certainly an honorable member of a school board.'
"Which said libel the said Charles Richter did then and there wilfully and maliciously publish by then and there causing same to be written and delivered to one Walter Griffin and read by said Walter Griffin and divers other persons; that the said Charles Richter intended to charge and did charge the said Roy Chestnut with being a thief; to the great scandal and disgrace of the said Roy Chestnut contrary to the Statute made and Provided and against the Peace and Dignity of the State.
"[Signed] H. D. Green Jr
"Prosecuting Attorney of Howell County."
The defendant in his first assignment of error claims the information is defective because it does not charge that the offense was committed in any township in Howell county.
A reference to the information will show that it was filed "before George Halstead a Justice of Peace of Howell Township Howell County, Missouri." So, under the provision of section 3900, Revised Statutes of Missouri 1919, we must rule this point against the defendant. This point has been ruled adversely to defendant's contention many times. State v. Jennings, 278 Mo. 544, 213 S. W. 421, State v. Fields, 262 Mo. 158, 170 S. W. 1132, Ex parte Perse, 220 Mo. App. 406, 286 S. W. 733, 735.
The next assignment of error as presented in the brief is set out in the motion for new trial as follows:
"Because during the argument of said cause the following colloquy occurred between the prosecuting attorney and counsel for the defendant, and the court failed and refused to reprimand the prosecuting attorney when so requested to do by counsel for the defendant."
"Closing arguments.
"By Mr. Green: Before this defendant moved in there, this was a peaceful community down there, the cattle roamed on a thousand hills and there was a little school house and a church and the children played there—
"By Mr. Watson: I object to that, there is no evidence as to any school house or any church in that community, or that there was peace and quietude or sobriety or anything else in this community before this man moved in there, or any evidence that he ever caused any disturbance of anybody's peace, and we ask counsel to be reprimanded for making these statements to the jury.
"By the Court: Objection overruled.
"By Mr. Green: This defendant had no right to go around over that community perjuring himself and libeling this prosecuting witness here.
"By Mr. Watson: We object to that statement that he was perjuring himself around over that community. That is absolutely unfair and reprehensible.
"By the Court: Objection sustained.
"By Mr. Watson: If that's the statement, I say the State of Missouri is...
