State v. Santhuff

GOODE, J. (after stating the facts). — 1. Neither the motion for new trial nor the motion in arrest of judgment called attention to the omission to rule on defendant’s motion to quash the amended information/ Therefore, without further inquiry, we overrule the error assigned for this omission. 2. Defendant asserts she was tried and convicted on either an information never filed, or on the second affidavit. It is plain the trial was on the amended information; that no other was filed or intended to be, but the entry of November 26th, stating the filing of a second amended one was a mistake and should have been a recital of the filing of the amended affidavit of Harrison. In the brief for defendant it is conceded no second amended information was filed, and this assignment of error is without merit. 3. The first affidavit was ample as a basis for both the original and the amended information. Such an affidavit need not be as complete technically as the [626] information. Its purpose is to prevent hasty and ill-advised action by requiring a prosecuting attorney, before he flies an information charging a person with crime, to have proof by a citizen’s oath, that a crime has been committed, and also to be able to exhibit to the person charged the names of his accusers. [State v. Schnettler, 181 Mo. 173, 79 S. W. 1123; State v. Brown, 181 Mo. 192, 79 S. W. 1111; State v. Runzi, 105 Mo. App. 319, 79 S. W. 992.] It is enough if an affidavit states the elements of an offense. [State v. Cornell, 45 Mo. App. 94.] 4. Imputing adultery to Harrison by distributing printed circulars and causing them to be read, was a libel by express statutory enactment. [R. S. 1899, sec. 2863.] And is punishable as a misdemeanor. [R. S. 1899, sec. 2260.] Beyond doubt defendant published the charge broadcast. She told the printer to send about a hundred copies of the circular to one postmaster in the county for distribution, to send them to three or four other postmasters, she paying the postage, and besides, she distributed copies herself. It is argued the criminal offense of libel was not committed because the paper circulated by defendant did not charge Harrison with sufficient particularity with having lived in a state of open and notorious adultery. In other words, failed to make the charge in such terms as would amount to accusing him of a crime under section 2175 of the statutes. It is not essential in order for defamation of character by publication to be libelous, that the published matter should impute a crime to the person defamed. The statutes define the tort as follows: “A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation [627] made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke surviving relatives and friends.” [R. S. 1899, sec. 2259.] The libelous document must be published by delivery, selling, reading or otherwise communicating it, or causing this to be done. [R. S. 1899, sec. 2261.] 5. We are cited to decisions on the proposition that in a case of libel the proof must agree with the indictment in every particular essential to identity; such as dates, names and the alleged libelous words used. [State v. Fitzgerald, 20 Mo. App. 408; 1 Greenleaf, Evidence, sec. 167.] Counsel are not explicit regarding the use they wish us to make of said rule of law in the present case; but as we glean from their brief, they consider it relative to certain testimony of the man defendant hired to print the circular. This witness testified that in printing the document he corrected some bad spelling in the original writing, and where a word like “in” or “and” had been omitted, inserted it. Hence it is suggested the document prepared by defendant differed from the one printed and distributed. It is enough to say on this point, defendant distributed the circular and caused it to be read as it was printed, and as printed it agreed exactly in the libelous portion with the charge in the information. We find no error in the record and the judgment, will be affirmed. All concur.