State v. Westbrook

• Decision Date: 12 December 1914
• Docket Number: No. 1310.,1310.
• Parties: STATE v. WESTBROOK.
• Court: Missouri Court of Appeals

171 S.W. 616

STATE v. WESTBROOK.

No. 1310.

Springfield Court of Appeals. Missouri.

December 12, 1914.

1. LIBEL AND SLANDER (§ 152) — CRIMINAL RESPONSIBILITY — INFORMATION — EVIDENCE.

To sustain a criminal charge for uttering slanderous words, substantial proof of the identical words, or enough of the identical words as will support the charge, is necessary, and equivalence is not enough.

2. CRIMINAL LAW (§ 731) — TRIAL — INSTRUCTIONS.

It is not error to charge on a trial for slander that the jury are the judges of the law and fact and not bound to find as the judge directs.

3. LIBEL AND SLANDER (§ 152) — CRIMINAL RESPONSIBILITY — INSTRUCTIONS.

An instruction on a trial for slander, which authorizes a conviction on the jury's finding that accused spoke the words charged, "or words substantially the same," is erroneous, because the charge and the proof thereof must substantially correspond.

4. CRIMINAL LAW (§ 814) — TRIAL — INSTRUCTIONS — APPLICATION TO CASE.

Where, on a trial for slander, there was no evidence on which to justify a conviction for want of proof of the identical words complained of, or enough of them to support the charge, an instruction authorizing a conviction on the jury's finding that the accused spoke the words charged, or words substantially the same, was erroneous because not sustained by the evidence.

5. CRIMINAL LAW (§ 811) — TRIAL — INSTRUCTIONS — SINGLING OUT TESTIMONY OF WITNESS.

An instruction directing the jurors' attention to the fact that a witness had been impeached by proof of contradictory statements, and stating that, if the witness had made contradictory statements, the jury should take the same into consideration in determining his credibility as to the remainder of his testimony, was erroneous as singling out testimony and commenting thereon.

6. LIBEL AND SLANDER (§ 152) — CRIMINAL RESPONSIBILITY — INFORMATION — OFFENSES.

The better practice requires an information charging slander to state separately the several conversations had by accused at different times in the presence of different persons, instead of charging the speaking of the slanderous words at one time in the presence of all the persons.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

James Westbrook was convicted of slander, and he appeals. Reversed and remanded.

Mozley & Woody, of Bloomfield, for appellant. John L. Hodge, Pros. Atty., of Bloomfield, for the State.

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 is 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, Charley McMillan, Frank Asa, Frank Fowler, or either of them, falsely and 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, to wit, `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 $1,000, 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...