like error. The appellate court always presumes that the trial court has ruled correctly until the contrary appears, and unless the error is one which could not possibly under any supposable state of the evidence be justified, the court will not reverse the case, though the same may seem to have been wrongly decided, unless the whole of the evidence be in the record. This line of rulings is absolutely necessary in a single class of cases, and only one. Although the universality of the rulings may have grown out of the supposed analogy of code appeal to the chancery appeal, this analogy is very slight, for it is observable that the methods under the code appeal are those of the writ of error at the common law, and not those of the appeal in chancery. The class of cases in which alone there is a necessity for the whole of the evidence is where the error of the court in overruling the motion for a new trial, based upon the insufficiency of the evidence, is relied upon for a reversal of the case in the appellate court. Here the appellate court can only judge of the sufficiency of the evidence by reading it all, and hence it should be set out in full.

But while this is so, this class forms only a very small portion of the causes appealed to test questions arising upon the trial. The result is that in a majority of cases thus appealed the record is unnecessarily and improperly incumbered with large masses of testimony which serve no valuable purpose, but greatly increase the labor of counsel in preparing the bill of exceptions, increase the bulk of the record and the cost of the transcript, and while this great bulk of testimony serves no valuable purpose, it does render the record large and unwieldy and obscures the real point presented, by diffusing over a great number of pages of only written matter, that which might be so condensed as to present the only point relied upon, promptly, readily and easily. And with such a bulky record imperfectly presented upon brief, the appellate court spends days in examination of the record, when hours should suffice. The unnecessary increase of labor on this account is enormous as every practitioner knows.

This being so, is there any remedy? We have intimated above that this rule was the growth of judicial construction, but it is perhaps only fair to say that by implication at

least, there is legislative sanction for it. But whatever its origin, the only sure and effective remedy for it is legislative modification. But inasmuch as it is conceded that it is necessary in one class of cases, how shall the exemption be preserved and yet the reform be accompplished is freely conceded to be a difficult question. Nor can it be reduced to the same uniformity which is found in the practice in the Federal Supreme Court, for there this exception does not prevail, as rulings upon a motion for a new trial are not assignable for error in that court. But there can be a great reform effected even with this exception standing.

This amendment is suggested as meeting the case and obviating the diffculty. Let it be enacted that in the preparation of a bill of exceptions the judge shall require counsel to introduce no more of the evidence than is necessary to present the question of law upon. which the opinion of the appellate court is sought, and no bill of exceptions containing the whole of the evidence shall be signed by any judge, except in cases where a motion for a new trial for the insufficiency of the evidence has been overruled, and where the bill of exceptions containing the whole of the evidence is accompanied by the affidavit of the appellant setting forth that he believes he has a meritorious cause for reversal for error of the court in overruling such motion for such cause, and where such affidavit or the contents thereof are certified to by counsel. This without the exception is the rule of the Federal Supreme Court rigidly enforced. And if this rule with the exception were adopted in code practice, it would greatly mitigate the evil complained of.

For as the appellate court never reverses upon the evidence where there is any substantial basis for the verdict, even though a conflict of evidence appears, only a limited number of cases are taken up with a view to a reversal upon the evidence. And where that is not the ground, the reform would commend its self for its saving of expense and labor, besides other reasons already alluded to.

We can not better conclude this article than by an illustration, showing the effect of the proposed change. Let it be supposed that the action is by a party injured, for an injury occurring at the crossing of a street in a city,

by the collision of a railroad train with a wagon and team, whereby they were destroyed and the plaintiff injured in his person, by alleged negligence of the servants of the defendant, a railroad corporation. The defense is a denial of the negligence, and the charge of contributory negligence by the plaintiff. Twenty-four persons witnessed the collision all of whom are made witnesses, twelve on a side. The whole of the testimony is taken down by a reporter, and makes a hundred pages of written matter, and including the instructions makes a bill of exceptions of large dimensions which, with the pleadings and other matters, will make a large sized record. The plaintiff's witnesses swear that the train was running at twelve miles an hour, which we will concede was a dangerous speed; that no bell was rung or other signal given. But the defendant's witnesses swear that the bell was rung all the way, and the usual signal given and the train conducted in a careful manner, running only four miles an hour. Instructions are asked and refused, and given and refused and excepted to, etc. No appellate court would reverse the case upon the evidence, whether the plaintiff or defendant prevailed, as the evidence is about equally balanced, and even the court below should hesitate to disturb the verdict. But let it be supposed that t e plaintiff had a verdict, as he surely would have in such a case, but the defendant feeling himself aggrieved should desire to test the correctness of the rulings of the court in the instructions. Under the present system he must incur the labor of preparing the bill of exceptions setting out the whole evidence and the instructions, the expense of copying it and the additional labor of digesting, abstracting and presenting it to the court, and must impose upon the court the additional labor of examining this mass of testimony in order to apply to it the instructions, and to test their legal accuracy. But by the proposed reformed method the whole bill of exceptions might be embraced within less than one-twentieth the space, so that nineteentwentieths of the labor and expense would be thus saved. The bill of exceptions would be about in the following form, that is to say; Title. Term. "Be it remembered that upon the trial of the cause aforesaid, at the term aforesaid, the plaintiff's evidence tended to

show that the defendant's train was, on the ay of the collision mentioned in the complaint, run at twelve miles per hour through the streets of A. from its depot toward B. That no bell was rung and no whistle sounded or any other signal was given. That the plaintiff was going along upon one of the cross streets crossing the defendant's track with his wagon and horses hauling a load of coal when the injury occurred. That by a turn of the defendant's track, and by the obstruction of the view by.houses, the plaintiff was prevented from seeing or hearing the train, though he stopped and looked and listened. before driving across; that though he drove rapidly across the track, the train, at this rapid speed, came upon him and destroyed his wagon and team and severly injured him, etc. But the defendant's evidence tended to prove that the speed of the train was only four miles an hour, the usual speed, and that the bell was rung from the leaving of the depot to the city limits beyond the place of collision; that the track of the road is straight and open to view for a quarter of a mile, and that any one who either looked or listened must have seen or heard the train; that the plaintiff did not stop but went right on looking in the opposite direction from that from which the train was approaching; that the train was running upon its exact customery time;

that plaintiff did not come

in sight of the engineer till near the track, and that the train could not be stopped soon enough to prevent the collision.

At the close of the evidence the defendant requested the court to give the following instructions: (here insert) but the court refused to give the same, where to the defendant at the time excepted, and thereupon, upon the request of the plaintiff, the court gave the following instructions: (here insert.), whereto the defenndant at the time excepted, and thereupon the court, upon its own motion, gave the following instructions: (here insert), whereto the defendant at the time excepted." This, with the closing formula, in all less than three cap pages, would present every question which could be raised upon the instructions as fully as they could be raised by the bill of exceptions of a hundred pages. And so of any error arising upon the trial or in the proceedings, excepting only upon the

overruling of the motion for a new trial based upon the insufficiency of the evidence. The form above indicated is ample in every other imaginable case. A. I.



St. Louis Court of Appeals, November, 1879.

Slanderous words, not reduced to writing, constitute no offense against the criminal laws of this State.

Appeal from the St. Louis Court of Criminal Correction.

LEWIS, P. J., delivered the opinion of the court:

This is a criminal prosecution upon information, charging the defendant with having uttered slanderous words against the St. Louis chief of police and a private citizen. The information was demurred to as charging no criminal offense known to the laws of Missouri. The demurrer was sustained, and the city appealed.

No statute of this State forbids the utterance of slanderous words, not written or printed, as a crime to be punished. If the act is criminal under our law, this must be because it was made so by the common law of England, or by some statute or act of parliament made prior to the fourth year of the reign of James the First, which is of a general nature, not local to that kingdom, and which is not repugnant to or inconsistent with our constitutional or statute law. Wag. Stat. 886, §1. That a written libel may be an indictable offense is not open to question, but we know of no instance in which an oral slander, reflecting on personal character or conduct, has been held to be so in the United States. In England, both before and since the fourth year of the reign of James the First, criminal prosecutions for words spoken have not been unknown. But they furnish neither precedent nor authority for the present case. Most of these arose under the statutes of scandalum magnatum, which have always been considered repugnant to and inconsistent with the institutions of this country, and therefore as having no legal influence on this side of the Atlantic. Those statutes made it penal "to speak or to tell any false news, lies or other such false things, of the prelates, dukes, earls and other nobles and great men of the realm, and also of the chancellor, treasurer, clerk of the privy seal, stewards of the king's house, the justices of the one bench or the other, and the other great officers of the realm." The spirit of these several enactments originated in the earlier martial character of the British Constitution. Even the tenures were military, and so were the services. Absolute subordination to superiors in estate or condition was considered essential to the welfare and safety of the nation.

A consideration of vital importance in the eyes of loyal legislators and judges was that words reflecting on a magistrate in the execution of his office, virtually arraigned the king for the appointment of an unworthy person. . But, as in this country we have no prelates, dukes, earls, barons or other nobles, so we have also no "great men," in the sense which pertains to that description of person in the British statutes. Here all are equal before the law. An able law writer says: "In this country no distinction as to persons is recognized, and in practice a person holding a high office is a target at whom any person may let fly his poisonous words. High official position, instead of affording immunity from slanderous and libelous charges, seems rather to be regarded as making his character free for any one who desires to create a sensation by attacking it." Folkard's Starkie on Slander, $144, note 1. The picture may be highly colored, but it is sufficiently truthful to illustrate how generally the British laws on this subject are held to be incompatible with American institutions.

Another subject of criminal procedure under the British system may be found in blasphemous uterances against the Christian religion and its divine objects of worship. There "christianity makes part of the law of the land, on account of its connection with the established church.” In People v. Ruggles, 6 Johns. 290, 5 Am. Dec. 335, an indictment for blasphemy was sustained on the general ground that the offense was a gross violation of decency and good order." Chief Justice Kent held that, "the people of this country profess the general doctrines of christianity, as the rule of their faith and practice;" and that "nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful.” It is not material to inquire whether an indictment would be sustained in Missouri upon the same grounds. The case is referred to for the purpose only, of exemplifying the particular kind of oral utterances which have been held to be indictable under the common law and British statutes.

An examination of all the authorities will show that, not even in England. was there ever a criminal prosecution sustained for words spoken, simply because they were defamatory of a private person not within the privileged class. The privilege there enjoyed by magistrates was never extended to inferior ministerial officers, or to those whose official character might be supposed to correspond. with that of an American chief of police. In America, where there are no privileged classes, prosecutions for words spoken have been wholly unknown, except where the words, or their tend-encies, involved something more than mere personal detraction. Starkie says: "An indictment. will not lie for mere words not reduced into writing, unless they be seditious, blasphemous, grossly immoral, or addressed to a magistrate while in the execution of his office, or uttered as a challenge to› fight a duel, or with intention to provoke another to send a challenge," Starkie on Slander, § 758. It is not pretended that the information in the present

case brings the words uttered within any of these exceptions. Another high authority says: "Slander is not like libel, an indictable offense. Bailey v. Dean, 5 Barb. 297. Nor is a single precedent of any criminal proceedings from unwritten imputations upon the character of individuals to be found, except in cases of high treason,

and it must have been as constituting rather an offense against the government than an injury to the individual, and being therefore seditious, that words reflecting on a magistrate in the immediate execution of his office were for the first time in the reign of Queen Anne held to be indictable. Reg. v. Langley, 2 Ld. Raym. 1060, Holt 641." Townshead on Slander, 3 ed. 66, note 3.

The words charged in the information, in the present case, were purely defamatory of the persons mentioned-accusing them of having formed unlawful combinations for the commission of certain misdemeanors. There was nothing to bring them within any known exception to the general rule that slanderous words not reduced to writing constitute no offense against the criminal laws of this State. The demurrer to the information was properly sustained. All the judges concurring, the judgment is affirmed.



Supreme Court of New Jersey, June Term, 1879.

A conspiracy to slander a person by charging him with a criminal offense is indictable.

Indictment for conspiracy.

The gravamen charged was, that the defendants “fraudulently and unlawfully did conspire and agree between and among themselves, by means of divers false wicked and malicious charges, to injure and defraud him, and to cause him to be regarded as a dishonest man and a thief." The over acts laid, in substance were that the defendants "reported to and among his neighbors that the said Dringer was a thief, and had dishonestly obtained certain brass, copper, etc., from etc,; that they made false affidavits that said Dringer was a dishonest man, and had obtained fraudulently from the Erie company a large amount of copper, brass, etc., and other things fraudulently and in such a manner as to make it stealing by said Dringer from said company," etc. The indictment having been brought before this court by certiorari, a motion was made to quash it.

BEASLEY, C. J., delivered the opinion of the


The principal objection to this indictment that was urged on the argument, is that, taking the pleading at its best, it alleges nothing more than a conspiracy to defame a person by the propagation of a slander: and it was insisted that the wrong thus charged was a civil injury, and not a crimi

nal offense, But the rule of law thus assumed to exist is not only unsupported, so far as has been discovered, by any authority, but is opposed by several direct decisions, and is inconsistent with the general legal theory of the subject. The cases on this head heretofore settled by this court are, with respect to the legal principle underlying them, entirely at variance with the rule here contended for. State v. Donaldson, 3 Vroom. 151; State v. Cole, 10 Vroom, 324. Indeed, it may be said that a combination, formed with a view to cause a person to be suspected of having committed an indictable offense, is much nearer to the original ground upon which, in the old books, criminal prosecutions for conspiracy are based, than were the combinations in either of these reported cases. There are strong indications that originally the definition of conspiracy did not include anything more then confederacies to charge falsely a person with criminality. Thus Lord Coke describes the offense as "a consultation and agreement between two or more, to appeal or indict an innocent person falsely and maliciously, whom accordingly they cause to be indicted or appealed; and afterwards the party is lawfully acquitted by the verdict of twelve men," Blackstone also seems to regard the offense to be confined to a malicious accusation. 4 Black. Com. 136. There are several cases in the Year Books that favor the same limitation. And, in fact, this species of indictment was the remedy for the same wrong, considered in its criminal aspeet, for which an action for a malicious prosecution was the remedy, considered in its civil aspect. It is much in this light that the subject is treated in Jacob's Law Dictionary, tit. "Conspiracy," and in Hawk. P. C., b. 1, c. 72, § 2. But the doctrine was soon expanded beyond this limit, and, among other cases, it was held that although no indictment had been found, or even though no complaint had been laid before a magistrate, and the only object appearing was to destroy the reputation of an individual, a prosecution for conspiracy could be maintained. This was the ruling by Lord Mansfield in the case of Rex. v. Parsons, 1 Black. 392, the facts in proof being that the defendants had conspired to take away the character of one Kempe, and accuse him of murder "by pretended conversations and communication with a ghost that conversed by knocking and scratching in a place called Cock Lane.” The report of the case does not show that anything was done by the confederates beyond spreading reports defamatory of the person who was the object of their malice.

The present indictment is, I think, in the direct line of the precedents, as it is a slander imputing an indictable offense, the alleged endeavors of the confederates being to bring the prosecutor under the suspicion of having been guilty of theft. Reg. v. Best. Salk. 174; Rex. v Kimberley, 1 Levinz, 62; Reg. v. Best, 2 Ld. Raym. 1167.

In the brief of counsel of defendant, I find the text book of Mr. Gabbett, (1 Crim. Law, 252.) quoted and much relied upon. This author has reviewed this subject with evident care and acuteness, and it seem to me that his conclusions are in direct oposition to those that are necessary to sustain this defence. This is his ultimate deduction

from the authorities: "Conspiracies," such is his language, to injure or destroy the reputation of others have in several cases been held to be proper subjects of an indictment, and the fair result of these cases appears to be that the mere conspiracy to slander a man will not be sufficient, but there must be combined with it the imputation of a crime, by either the temporal or ecclesiastical courts, or else an intent by means of such false charges to extort money from the party."

From this citation, it seems to me that it is

As the

manifest that in the opinion of this ingenious writer, in order to bring a conspiracy to slander a person, per se, within the category of indictable offences, the slander designed to be propogated must be of a particular nature-that is, it must include the imputation of an offence punishable either by the temporal or spiritual courts. object of the present confederacy was, as laid in the indictment. by means of "false, wicked and malicious charges" to cause the prosecutor to be regarded as a thief, it would seem that the present proceeding, by the test proposed, would be justified. It is true that the counsel of the defendant in his explication of this proposed rule, advances the view that it requires something more to make up an indictable conspiracy than a design to impute an indictable offence, such supposed superaddition being that the charge should be so specific as to jeopard the person slandered, by subjecting him to the risk of a criminal proseention. But this is an interpolation into the rule of a matter foreign to the text writer just quoted, as well as to the authorities, for it is not perceived that there is any indication to such a purpose in any of the decisions.

With respect to the objections to the mode of laying the overt acts, it suffices to say that they .appear to spring out of the false theory that the office of such averments is to show a complete performance of the scheme of the conspirators. The statute does not exact that a full execution of the conspiracy shall be shown, the requirement being merely "that some act in execution of such agreement be done to effect the object thereof." The consequence is, this indictment is not defective in this respect.

The motion to quash must be denied.

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do, the indictment charging the sale to have been made on the 1st day of March, 1879. On the trial the State admitted that Wilcox had a license to sell intoxicating liquors, which bore date the 7th of January, 1879, and ran for one year from that date, but offered to prove that he did not pay the license fee required until the 7th day of March, 1879, after the grand jury had begun the examination of his case, of which fact he had knowledge, whereupon he paid his license fee and procured his license. On objection to this evidence it was refused and the defendant was acquitted. The State appealed.

Howk, J., delivered the opinion of the court: The main question for decision in this case is almost identical with the question which was fully considered and decided by this court in the recent case of Vannoy v. State, 64 Ind. 447. Indeed, this is conceded by the learned counsel for the State in their argument of the case at bar and therefore they have asked us to limit the scope of that case, modify it, or overrule it altogether." In the case cited it appeared that Vannoy had in due form of law obtained an order from the proper board of commissioners, granting him a license to retail intoxicating liquors at a certain place, for and during one year from and after the date of said order upon the payn ent of the license fee required by the statute, and that he had, on and before the date of said order, strictly and literally complied with all the requirements of the statute, except as to the payment of the license fee; that he had neglected to pay such license fee for more than six months after the date of the order granting such license and had then paid the fee, and then obtained from the proper officer his license of the same date as the date of the order granting it, and for the term of one year from and after said date; and that during the time intervening between the date of said order and the date of the manual delivery of his license, he made the sale upon which the indictment was predicated; and that this indietment had not been found against him, until after his payment of said fee, and his actual possession of the license, which, by its terms, expressly authorized him to make the sale charged in said indictment. It is evident, we think, that there is no inaterial difference between that case and the case at bar, as it would have been if the facts offered by the State had been admitted in evidence.

In the Vannoy case it was held by this court that where a retailer had made a sale without license, and therefore an unlawful sale, he could not be indicted and punished for such sale after he had received a license, which, by its terms, covered the precise time and place, when and where such sale was made, and expressly authorized him to make such sale at such time and place. In other words, it was held that after a sale without license and therefore an illegal sale, the subsequent payment of the license fee and receipt of license, would so far legalize such unlawful sale as to relieve such retailer from the penalties prescribed by the statute in any prosecution for such offense subsequent to the issue of such license.

It seems to us that the doctrine of that case is just and right, and in strict harmony with the pro

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