State v. Derry

Philips, P. J. I. Objection is made to the indict — 555 — ment 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 sound 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 — 556 — 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 mat.ter 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. IY. 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 the manner of preferring the false accusation, etc. “Rvery person who shall falsely and maliciously charge or accuse any female of * * * fornication * * * by falsely speaking of and concerning such female, in the presence and hearing of any other person, any false and slanderous -words which shall impute to her any such offence,” etc. It is manifest from this statute that it was not more the originator of the slander struck at by the law-makers, than he who speaks it of and concerning such female. The manifest purpose being to make the specified instances of verbal slander a misdemeanor, it would seem to be a reasonable construction to apply to it the common law rule that, “tale-bearers are as bad as tale-makers.” ■Odgers, in his treatise on Slander and Libel, p. 161, illustrates this quite aptly by the colloquy in “The School of Scandal”: “Mrs. Can. — But surely you would not be quite so severe on those who only repeat what they hear? — 557 — Sir Pet. — Yes, madam, I would have law merchant for them too ; and in all cases of slander currency wherever the drawer of the lie was not to be found, the injured party should have a right to come on any of the indorsers.” Or, as put by Henry, J., in Johnson v. St. Louis Dispatch Co. (65 Mo. 541), “the stereotyped formulas of slander, ‘they say,’ ‘it is said,’ ‘it is generally believed,’ are about as effective modes of blasting reputation as to' distinctly and directly charge the crime.” To bring the defendant within the rule of protection recognized by our supreme court for repeating slanderous' words, it devolved upon him to show that at the time of speaking the words he gave the name of his author, and he should also give a cause of action against such third person by showing that he spoke the words falsely and maliciously, and that defendant believed what he had heard, and that he repeated the words only on a justifiable occasion. Moberly v. Preston et al., 8 Mo. 463; Johnson v. Dispatch Co., supra, 463. The uncontradicted evidence is that the defendant did not give the true name of his author; and so far from giving the injured party a cause of action against the originator, the defendant purposely withheld the name in order to screen him from responsibility. And when the name of the real party, with whom he had any conversation affecting the good- name of the woman, is discovered, this party flatly denies, under oath, the authorship. The defendant must stand as sponsor for the bastard offspring. Y. It is finally insisted that the communication made by defendant to his brother was privileged. It may be conceded that a communication made, bona fide, by one brother to another, in answer to an inquiry by the brother having an interest in the information sought, might be privileged. Lewis v. Chapman, 16 N. Y. 369 ; Mott v. Dawson, 46 Ia. 533. “Every one who believes himself to be possessed of knowledge, which, if true, does, or may, affect the rights and interests of another, has the right, in good faith, to — 558 — •communicate such as his belief to that other.” Town, on Sian, and Lib., sect. 241; 2 G-reenl. on Evid. (14 Ed.) .sect. 420. It is observable that the authorities speak of the communication being made to the party having an interest in knowing the fact. This interest, certainly, must be such .as in some way or degree concerns and affects the character, the welfare, the just and reasonable prospects, the social relations and offices, or such like interests of the party to whom the communication is made. It cannot be such interest as springs from prurient ■curiosity, or the appetite of the newsmonger. Had the defendant, who was paying attention to this woman, inquired of his brother what he knew, or had heard, of her character and deportment, the communication of the brother would clearly have been privileged. But whether the rule can be carried to the extent of this case, where the communication is voluntarily made to one not interested, apparently, further than to inquire why the defendant did not continue to visit a female acquaintance, is questionable, and not necessary to the determination of this case. Notwithstanding the communication was of a privileged character, yet if the defendant was actuated in the whole affair by malice, and his statement was false, he cannot escape. Lewis v. Chapman, supra, p. 373. This issue was fairly enough submitted to the jury, and by their verdict they found the malice and falsehood to exist. Nor is it clear how the defendant can take shelter under the plea that his statement to his brother was confidential, when both he and his brother testified that the seal of secrecy was never broken until done so by defendant’s permission and direction. Equally untenable is the suggestion that the woman .and her friends gave voice and wing to this defamation. The defendant, as if inspired with hate and mischief, went to the very sanctuary of this woman’s home, and -threw the insinuation in her face, thereby as justly, as ■naturally, arousing all the curiosity and pride of her; — 559 — womanhood. If the sleuth hounds of justice, led on by the outraged father, and hissed up by the wronged girl, ran hot and noisy on the scent of the slander, until all the neighborhood resounded with it, the defendant himself sprung the game. Had he in the first instance observed what Odgers on Slander (p. 304), enjoins: “No charge should ever be made recklessly and wantonly, even in confidence ; do not ■state a rumor as a fact, and in repeating a rumor be careful not to heighten its color, or exaggerate its extent, * * * confidential' advice should be given seriously and conscientiously; it should be manifest that you do not take pleasure in maligning the plaintiff, but are compelled to do so in the honest discharge of a painful duty,” this case would not be in court. We have given the defendant’s appeal careful consideration, and finding no substantial error in the record, the judgment is affirmed. All concur.