State v. Westbrook

• Decision Date: 12 December 1914
• Citation: 171 S.W. 616,186 Mo.App. 421
• Parties: STATE OF MISSOURI, Respondent, v. JAMES WESTBROOK, Appellant
• Court: Missouri Court of Appeals

171 S.W. 616

186 Mo.App. 421

STATE OF MISSOURI, Respondent, v. JAMES WESTBROOK, Appellant

Court of Appeals of Missouri, Springfield

December 12, 1914

Appeal from Stoddard County Circuit Court.--Hon. W. S. C. Walker Judge.

Judgment reversed and cause remanded.

Mozeley & Woody for appellant.

The State was permitted to convict the defendant of the offense charged by the proof of other and distinct conversations or statements than that charged. This evidence was incompetent and should not have been admitted for that purpose. State v. Pulitzer, 12 Mo.App. 6; Tippens v. State (Tex), 43 S.W. 1000; Collins v. State (Tex.), 44 S.W. 846; State v. Railroad, 219 Mo. 156, 117 S.W. 1173; State v. Stike, 149 Mo.App. 104, 129 S.W 1024; State v. Phillips, 233 Mo. 299, 135 S.W. 4; State v. Spray, 174 Mo. 569, 74 S.W. 846; Bill of Right, Sec. 22; State v. Wellman, 253 Mo. 302, 161 S.W. 795; State v. Smith, 250 Mo. 274, 157 S.W. 307; State v. Horton, 247 Mo. 657, 153 S.W. 1051; State v. Teeter, 239 Mo. 475, 144 S.W. 445; Adams v. State (Tex.), 138 S.W. 117; State v Meysenberg, 171 Mo. 1, 71 S.W. 229. (2) Instruction No. I, given for the State, was erroneous, because it authorized the jury to convict the defendant if they found that he spoke the words charged, or words substantially the same. This was a misdirection. It is the charge and the proof thereof which must substantially correspond, and not the words. Conran v. Fenn, 159 Mo.App. 664, 140 S.W. 83; State v. Fenn, 112 Mo.App. 531, 86 S.W. 1098, and cases there cited; Bundy v. Hart, 46 Mo. 460, Mix v. McCoy, 22 Mo.App. 493; Wood v. Hilbish, 23 Mo.App. 399; Hauser v. Stergers, 137 Mo.App. 560, 119 S.W. 52; Kunz v. Hartwig, 151 Mo.App. 94, 131 S.W. 721; Lemaster v. Ellis, 173 Mo.App. 332, 158 S.W. 904; Tippins v. State (Tex.), 43 S.W. 1000; Parsons v. Henry, 177 Mo.App. 329, 164 S.W. 241.

John L. Hodge for respondent.

There is no merit to appellant's contention that the State was permitted to convict defendant of the offense charged by proof of other and distinct conversations or statements than that charged. It is proper to charge conjunctively, in one count, more than one act; and if defendant is guilty of either, the offense is made out. R. S. 1909, Sec. 4484; R. S. 1909, Sec. 4713; R. S. 1909, Sec. 4817; State v. Karnes, 51 Mo.App. 293; State v. Daniel, 40 Mo.App. 356; Hauser v. Steiger, 137 Mo.App. 564, 565; Brown v. Wintsch, 110 Mo.App. 270, cases cited; State v. Fenn, 112 Mo.App. 531; State v. Buck, 43 Mo.App. 443. When taken as a whole the instruction complained of does not take from the jury its function of determining whether or not the language spoken constitutes slander. It is clear this instruction is merely advisory and not peremptory. This theory is further borne out by instruction number three given by the court at the request of the defendant, which tells the jury that they are the judges of the law as well as of the facts, and are not required to accept the instructions of the court as conclusive of the law. State v. Simpson, 136 Mo.App. 666; Section 4817 R. S. Mo. 1909; Hauser v. Steigers, 137 Mo.App. 565.

FARRINGTON, J. Sturgis, J., concurs. Robertson, P. J., concurs herein, but without changing his views as to the application of the law in the case of Lemaster v. Ellis, 173 Mo.App. 332, 158 S.W. 904.

OPINION

FARRINGTON, J.

--The appellant was convicted in the circuit court of Stoddard county on an information charging him with having unlawfully, falsely and maliciously charged and accused one Eva G. Pentacost of fornication, "by then and there falsely speaking of, and concerning her, the said Eva G. Pentacost, in the presence and hearing of Milo Castleman, Charley McMillan, Frank Asa, James Young, Frank Fowler and divers other persons to the prosecuting attorney unknown . . . the following false and slanderous words, imputing to the said Eva G. Pentacost the act and offense of fornication, that it to say, 'We saw her,' meaning the said Eva G. Pentacost, 'and Chester Bridges holding sexual intercourse together with each other.'"

Instructions numbered 1 and 3 given on behalf of the State are as follows:

"1. The court instructs the jury that if you believe and find from the evidence that at the county of Stoddard and State of Missouri, within one year prior to September 1, 1913, the defendant, James Westbrook, did, in the presence and hearing of Milo Castleman, Charley McMillan, Frank Asa, Frank Fowler or either of them, falsely, and maliciously charge and accuse Eva G. Pentacost of fornication by then and there in the presence of and hearing of Milo Castleman, Charles McMillan, Frank Asa, Frank Fowler, or either of them, falsely, maliciously speaking of and concerning the said Eva G. Pentacost, in a conversation then and there had, concerning the character and reputation of the said Eva G. Pentacost for virtue and chastity, the following words, towit: 'We saw her and Chester Bridges holding sexual intercourse together with each other,' or words substantially the same, the said James Westbrook then and thereby falsely and maliciously charging and intending to charge the said Eva G. Pentacost with, and accuse and impute to her, the act and offense of fornication, by then and there having illicit sexual intercourse with the said Chester Bridges. Then the jury should find the defendant guilty of slander as charged in the information, and assess his punishment at imprisonment in jail for a term of not exceeding one year, or a fine of not exceeding $ 1000 or by both imprisonment in jail and by a fine not exceeding the above limit in each instance. And the court further instructs the jury that by the term 'maliciously,' as used in the instructions and information, is not meant necessarily either ill will, hatred or spite, but means the intentional doing of a wrongful act without just cause or excuse.

"3. The witness, Chester Bridges, was asked if he had stated to one Claud Jarrell that he had felt the legs and breasts of the said Eva G. Pentacost, and the said Chester Bridges denied that he had made such statement--witness, Jarrell, testified that he had made such statement to him. Now if you believe that said Bridges made such statement to said Jarrell, you may take such contradiction into consideration and give it such weight as you may deem it entitled to receive in determining the credibility of such Bridges as to the remainder of his evidence given before you by the witness, Bridges, and such testimony as to said contradiction is not competent for any other purpose in this case."

The record before us contains numerous errors.

Without detailing the conversations and reproducing the language used by the witnesses on behalf of the State in relating what the defendant did say to them with reference to Chester Bridges and Eva G. Pentacost, it is enough, so far as this opinion is concerned, to state that no single witness throughout the entire record testified that the defendant used the words charged in the information or any substantial number of the words used to sustain the charge made. They did testify to conversations with defendant from which it would be reasonably inferred that he stated that he had seen Chester Bridges and Eva G. Pentacost in the act of having sexual intercourse, but the words sworn to by the witnesses as having been used by the defendant were merely the equivalent and not the words actually charged in the information to have been used nor any of the words charged in the information.

It has been so long the settled rule in this State, both in criminal and civil trials, that there is a variance where the proof fails to show that substantially the same words were used by the accused as he is charged with having used, that it will require a mere reference to the decisions to sustain the ruling we make. In the opinions it is pointed out that to substantially sustain the charge means that substantial proof of the identical words or enough of the identical words as will support a charge is necessary. Equivalence will not do; there must be enough of the same words. This rule is found stated in the following cases: State v. Fenn, 112 Mo.App. 531, 86 S.W. 1098; Conran v. Fenn, 159 Mo.App. 664, 140 S.W. 82; Coe v. Griggs, 76 Mo. 619; Christal v. Craig, 80 Mo. 367; Noeninger v. Vogt, 88 Mo. 589; Berry v. Dryden, 7 Mo. 324; Street v. Bushnell, 24 Mo. 328; Birch v. Benton, 26 Mo. 153; Bundy v. Hart, 46 Mo. 460; Mix v. McCoy, 22 Mo.App. 488; Wood v. Hilbish, 23 Mo.App. 389; Hauser v. Steigers, 137 Mo.App. 560, 119 S.W. 52; Kunz v. Hartwig, 151 Mo.App. 94, 131 S.W. 721; Parsons v. Henry, 177 Mo.App. 329, 164 S.W. 241; Crandall v. Greeves, 170 Mo.App. 638, 168 S.W. 264; Lemaster v. Ellis, 173 Mo.App. 332, 158 S.W. 904.

Appellant charges that instruction number 1 is faulty in several particulars: (1) That it invades the province of the jury because section 4821, Revised Statutes 1909, provides that the jury under the direction of the court in slander cases shall determine the law and the fact. (2) That on reading the instruction it is found that the jury was told on the finding of certain facts to return a...