source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    JOSEPH DIENER, Appellant, v. STAR-CHRONICLE PUBLISHING COMPANY.
    In Banc,
    November 12, 1910.
    1. ABSTRACT: Matters of Record and Exception: How Preserved. The petition, a demurrer thereto, and the order overruling the demurrer, are all matters of record, and need no motion for a new trial to preserve them for review (unless defendant by answering over waived the demurrer) and have no place in the bill of exceptions, and if preserved therein only cannot be reviewed on appeal. On the other hand, the motion for a new trial, and the exception to the court’s 'ruling thereon, are matters _of exception, have no place in the record proper, and cannot he reviewed on appeal if preserved therein only; but the record showing the filing of the motion and the court’s ruling thereon are parts oi the record proper and should be set out as record matters in the abstract.
    2. LIBEL: Petition: No Cause of Action Stated. The petition charged that defendant printed and published in its newspaper “the following false, defamatory and libelous article or language of and concerning plaintiff: ‘Is he the same coroner? Isn’t Coroner Julius C. Baron, present incumbent and candidate for re-election, the public official who joined with the police in letting Health Commissioner Bond’s chauffeur go free, without bond or charge or investigation, after the latter had run down and killed a little child in the street, and if he is, would this be a good reason for continuing his term of service? Voters, with or without children, who think there should be an inquiry into the mangling of such little tots, please answer at the polls.’ That this plaintiff was the chauffeur to whom defendant referred in said publication, and that by said publication defendant thereby meant to charge this plaintiff with a crime involving moral turpitude, and with having willfully and wantonly taken the life of a human being. That said publication was willful and malicious, and he has been damaged,” etc. Meld, that the petition did not state a cause of action for libel.
    3. -: -:' Demurrer Lies. In spite of the fact that the Constitution says that, in libel, “the jury, under the direction of the court, shall determine the law and the fact,” a demurrer lies to a petition sounding in tort for libel the same as to any other petition.
    4. -:-: Libelous of Another. A party cannot support a charge of libel by showing that the same publication libeled 'another. The malice to support the charge must flow from defendant to plaintiff and be personal to him, whatever it may be' towards the other.
    5. -: -: Context: Kill and Mangle. All parts of a publication must be read together to collect the true meaning; and where the publication states that a chauffeur “had run down and killed a little child in the street” and there “should always be an inquiry into the mangling of such little tots,” these words should be read in connection with their context, and when that is done they suggest an automobile, which is not a lethal weapon, like a gun, and no evil intent to kill or harm is presumed by its mere use, but the words used naturally suggest death by negligence or accident, and therefore the conclusion in the petition that defendant meant to charge plaintiff “with having willfully and wantonly taken the life of a human being” is an unnatural and strained construction and cannot in law be held to so mean. The word “killed” therein only means that the child was deprived of its life by a collision.

      Q. -: - — : Veiled: Attitude of Courts: Unambiguous Words. Courts no longer construe words in their most favorable and mild sense when an offensive or libelous sense may be fairly deduced from the trend of the publication. The law will be as astute to reach and cure as is the libeler to hide, adroitly veil and do harm. On the other hand, courts will not hunt for a forced and strained construction of the words' used, nor will they permit a witness to testify that the words conveyed to him the idea of a felonious taking of a human life, when they are not ambiguous and that idea is not their natural, honest or generally understood meaning; and when that is the case, there is nothing for the jury to pass on.
    7. -: Freedom of Speech. Freedom of speech is guaranteed to the individual and newspaper by the Constitution, and courts are charged with the duty to see that it is not abridged. A newspaper may comment fairly, freely, with vigor and severity, on any matter of public concern, and especially the public acts of public officials, and if the freedom is not abused by the use of malicious, false or defamatory words, the publication is qualifiedly privileged.
    8. -: -: Coroner: Qualifiedly Privileged. The office of coroner involves the duty of investigating the causes of sudden, violent and unnatural death; and a publication which calls attention to the fact that a child was killed in the public street by an automobile driven by plaintiff and that no investigation was made into the matter by the coroner, and inquiring whether or not plaintiff was permitted to go free because he was the chauffeur of another public officer, is primarily directed at the coroner, and is a reasonable comment and qualifiedly privileged.

      Appeal from St. Louis City. Circuit Court — Hon. Chas. G. Allen, Judge.
    Affirmed.

      Robert. & Robert for appellant.
    (1) Where the words complained of as libelous are susceptible of two meanings, one harmless and the other defamatory, the jury must determine in which sense the readers may have understood them. Constitution, art. 2, sec. 14; Julian v. Star Co., 209 Mo. 35; McGinnis v. Knapp, 109 Mo. 131; Caruth y. Richardson, 96 Mo. 190 ; Johnson v. Dispatch- Co., 2 Mo. App. 569; Feder v. Herrick, 43 N. J. L. 24; Publishing Co. v. Jones, 83 Tex. 302; Odger’s Libel and Slander, secs. 23, 306. (2) The amended petition states a cause of action for libel per se, as the publication charged the plaintiff with the commission of a crime and held him up to public scorn. R. S. 1899, sec. 2259; R. S. 1899, secs: 1815, 1816; 1817, 1835, 2375; Meriwether v. Knapp, 224 Mo. 617; Julian v. Star Co., 209 Mo. 35; Minteer v. Bradstreet, 174 Mo. 485; Noenn'inger v. Yogt, 88 Mo. 589; Ferguson v. Pub. Co., 72 Mo. App. 462; Herman v. Bradstreet,'19 Mo. App. 229; Pub Co. v. Smith, 149 Fed. 704; O’Shaughnessy v. Recorder Co., 58 Fed. 653; Holt v. State, 89 Ga. 316; Poole v. State, 87 Ga. 526; Clark Crim. Law (2 Ed.), 186; 1 Whart., Crim. Law, 329. (3) The word “killed” imputed to the plaintiff the crime of murder and is actionable per se. Jones v. Murray, 167 Mo. 25; Noenninger v. Yogt, 88 Mo. 589; Button y. Hayward, 8 Mod. 24; Cooper v. Smith, 1 Rolle’s Abr. 77; Doan v. Kelley, 121 Ind. 43; O’Connor y. O’Connor,'24 Ind. 214; Thomas v. Blaisdel, 147 Mass. 438; McLaughlin v. Cowley, 131 Mass. 70; McLaughlin v. Cowley, 127 Mass. 316; Publishing Co, v. Jones, 83 Tex. 302; Curley v. Feeney, 67 N. J. L. 70; Carroll v. White, 33 Barb. 615; Hays v. Hays, 1 Humph. 402; Cady v. Times .Co., 58 Minn. 329; Palmer v. Smith, 21 Minn. 419; “Killer,” Webster’s Dictionary and Century Dictionary.

      Nathan Frank and Richard A. Jones for respondent.
    (a) At the outset of every libel proceeding, if the sufficiency of the matter charged in the petition to constitute a cause of action is' challenged, it is properly within the scope of the functions of the court to determine this, even though it may involve an inquiry as to the quality of the publication, whether defamatory or otherwise. Heller v. Pulitzer Publishing Co., 153 Mo. 213; Duncan v. Williams, 107 Mo. App. 541. (b) In arriving at the sense in which alleged libelous words are employed, the entire language used must be considered in determining this, and whether' there is contained therein a defamatory charge. Hall v. Adkins, 59 Mo. 144; Trimble v. Foster,'87 Mo. 49. (c) The most that can be derived from the publication upon which appellant bases his action is that a coroner — a candidate for re-election — while holding such office, failed'to make investigation concerning the.happening of a casualty resulting in death. That a child had been run over by an automobile, and the person operating’ the machine which caused such death was released from responsibility without inquiry on the part of the coroner to determine whether any existed or not. The publication then suggests that those voters who think there should always be an inquiry into such casualties should cast their ballot accordingly. The publication has reference solely to the coroner’s failure to make inquiry as to the circumstances surrounding casualties resulting in death. It does not charge that if such investigation had been made, it would have resulted in fixing upon the chauffeur described any improper action or delinquency, much less attribute to sucb person the' crime of murder, as is suggested in the pleading and brief of appellant. The publication is not libelous. It does not contain a charge of a defamatory character as against appellant, does not attribute to him any delinquency or misconduct, legal or moral, and the trial court rightfully held that no statement was contained in the matter complained of which constitutes a cause of action in favor of appellant. Spurlock v. Investment Co., 59 Mo. App. 225; Baldwin v. Walser, 41 Mo. App. 243; Legg v. Dunleavy, 80 Mo. 558, 10 Mo. App. 461; Branch v. Knapp & Co., 222 Mo. 580; Blackwell v. Smith, 8 Mo. App. 43; Christal v. Craig, 801 Mo. 367; Salvatille v. Ghio, 9 Mo. App. 155; Wood v. Hilbish, 23 Mo. App. 389; Klos v. Zahorik, 113 Iowa 161; Barr v. Pub. Co., 27 R. I. 101.; Curry v. Collins, 37 Mo. 3^4; Brown v. Tribune Assn., 77 N. Y. Supp. 461; Foot v. Pitt, 82 N. Y. Supp. 464; Ramscar v. Gerry, 1 N. Y. Supp. 635; Kilgore v. Evening Star, 96 Md. 16; Plpllenbeck v. Hall, 103 Iowa 214; Homer v. Co., 98 Mich. 506; Edwards v. Chandler, 14 Mich. 471; Bearce v. Bass, 88 Me. 521; Denneback v. Tribune Ptg. Co., 108 Mich. 75; Brown v. Boynton, 122 Mich. 251.
   LAMM, J.

—Tort for libel. Cast on demurrer

to his original petition, plaintiff plead over. Cast on demurrer to his amended petition, he stood, refused to plead over, suffered judgment, filed a motion for a new trial, excepted to the order overruling the same, had his bill of exceptions settled, allowed, and filed, and came up1 on appeal.

The amended petition reads:

“Now comes Joseph Diener, plaintiff in the above entitled cause, files this amended petition, and for his cause of action states that the defendant, Star-Chronicle Publishing Company, is and was at all times hereinafter mentioned, a corporation duly organized and existing under the laws of the State of Missouri. That at the time hereinafter mentioned said defendant was the publisher, proprietor and printer of a certain daily newspaper of large circulation in and about the city of St. Louis, which said newspaper is published in the city of St. Louis, State of Missouri, and is known as the ‘St. Louis Star-Chronicle.’
“That on, to-wit, the first day of November, 1906, there was printed and published in said newspaper the following false, defamatory and libelous article or language, of and concerning the plaintiff, to-wit:
“ ‘Is He the. Same Coroner.?
“ ‘Isn’t Coroner Jules C. Baron, present incumbent and candidate for re-election, the public official who joined with the police in letting Health Commissioner Bond’s chauffeur go free, without bond or charge or investigation, after the latter had run down and killed a little child in the street, and if he is, would this be a good reason for continuing his-term of service? Voters, with or without children, who think there should always be an inquiry into the mangling of such little tots, please answer at the polls. ’
“That at all times referred to in said publication, the plaintiff was the chauffeur of Health Commissioner Bond, which fact the defendant well knew, and that this plaintiff was the chauffeur to whom the defendant referred in said publication, and that by said publication, defendant thereby meant to charge this plaintiff with a crime involving moral turpitude, and with having willfully and wantonly taken the life of a human being.
“Plaintiff further states that said publication was willful and malicious, and that he has been damaged thereby in the sum often thousand dollars.
“Wherefore, plaintiff prays judgment in the sum of ten thousand dollars, together with his costs.”

The demurrer reads:

“Comes defendant, Star-Chronicle Publishing Co., and demurs to the amended petition of plaintiff filed in the above entitled cause, for that:
‘ ‘ The matter and things stated and charged therein are not sufficient to constitute a cause of action against this defendant.”

I. Plaintiff assumed to preserve his petition, the demurrer, the ruling sustaining it, his exception thereto, a motion for a new trial and his exception to overruling the latter, in a hill of exceptions. Fortunately, it happens in this instance that no harm came to him by that course. This, for the reason that the record proper, brought up in his abstract, also preserved such matter and his point.

But inadvertence in the use of rules of practice results in eases riding off on appeal without a disposition of the merits. In this view, caution is better than cure, as the precept puts it. Therefore, it is wise to stamp out heresies, to put up signs at the point of divergence from the beaten path. (Via trita est tutissima, 10 Coke 142.) To illustrate, if the ruling on the demurrer, the demurrer itself and the trial petition had been preserved nowhere else than in a bill of exceptions, this appellant would have nothing here to review; for if anything is settled it is that such matter has no place in a bill of exceptions. It is part of the record proper, and if it appear only in such bill it is the same as if it did hot appear at all.

The rules to go by are:

(a) A demurrer is part of the record proper. It must appear there. It needs no bill of exceptions to preserve it. The ruling on it is likewise a part' of the record proper, and no exceptions are necessary to have that ruling reviewed (provided error on the demurrer is not waived by pleading over). [Spears v. Bond, 79 Mo. l. c. 469; City of Tarkio v. Clark, 186 Mo. l. c. 293-4; Mallinckrodt Chem. Works v. Nemnich, 169 Mo. l. c. 395.]

(b) It results, as a sequence, that a motion for a new trial is not necessary in order to review the ruling on a demurrer, since that motion is directed to matters of mere exception. And so we have ruled over and over. [Hannah v. Hannah, 109 Mo. 236; Dysart v. Crow, 170 Mo. 280; McKenzie v. Donnell, 151 Mo. l. c. 448; Thorp v. Miller, 137 Mo. l. c. 238-9.] Vide, Houtz v. Hellman, 228 Mo. 655.

So much to show disapproval of the plan of plaintiff to keep life in his point by a motion for a new trial, and by a bill of exceptions.

This brings us to the real question in the case, which is:

II. Does the amended petition state a cause of action 1 We think not, because:

(a) A demurrer lies to a petition sounding in tort for libel the same as to any other petition, if certain conditions are present — this, in spite of the constitutional provision (art. 2, sec. 14 of the Bill of Rights) that, in libel, “the jury, under the direction of the court, shall determine the law and the fact. ’ ’ To illustrate:

If A sue B for libel without matter of innuendo or inducement, on the theory that the words published are libelous per se, and they are not libelous per se, the sufficiency of A’s petition may be challenged by demurrer, and is for the court.

Again, if A sue B for libel for words not actionable per se and the pleader, claiming they bear a hidden or latent libelous meaning because of certain extrinsic circumstances, sets such extrinsic circumstances forth by prefatory allegations by way of inducement and follows up the libelous words by an innuendo applying the words to the matter so pleaded by way of inducement, in such case, such innuendo should not be a forced and unnatural construction and application of the words, but a reasonable and natural construetion and application of them. A vice of that, sort can be reached by demurrer, and is for the court.

Again, if the words of the libel are ambiguous and the pleader can only put a libelous tang or edge upon them by a wholly unnatural and forced construction and tries to do so by an innuendo, that vice can be reached by demurrer, and is for the court.

So, if the petition be not challenged by way of demurrer, in limine, and the case be fully developed on trial, and if, under the pleadings and evidence no case is made, the court may take the case from the jury by a peremptory instruction in the nature of a demurrer.

So far as above indicated, libel suits, though sm generis, (in a sense) are subject to those rules of practice found wise and useful in administering justice generally in the courts.

The propositions just ruled lie well within the holding and reasoning of Heller v. Pulitzer Pub. Co., 153 Mo. 205; Ukman v. Daily Record Co., 189 Mo. l. c. 390, and the fourth proposition discussed in the Ukman case, l. c. 393 et seq., and cases and text-books cited; Branch v. Knapp & Co., 222 Mo. l. c. 587-7; Bank v. Henty, L. R. 7 App. Cas. (H. L.) 741. And the student in jurisprudence, curious in that behalf, may find in those cases and authorities the reasoning supporting those propositions.

It may not be .amiss, in passing, to borrow and quote a bit of wisdom anent demurrers in libel and slander from a very good authority. Henry Lord Cromwell brought suit for slander against Denny, a vicar, in the King’s Bench during the time of Queen Elizabeth. [Lord Cromwell v. Denny, 4 Coke 12b.] In commenting on that case, Sir Edward Coke quaintly says: “In this case, reader, you may observe an excellent point of learning in actions for slander, to observe the occasion and cause of speaking of them, and how it may be pleaded in the defendant’s excuse. When the matter in fact will clearly serve for your client, although your opinion is that the plaintiff has no cause of action, yet take heed yoü do not hazard the matter upon a demurrer; in which, upon the pleading, and otherwise, more perhaps will arise than you thought of, but first take advantage of the matters of fact, and leave matters in law, which always arise upon the matters in fact ad ydtimum, and never at first demur in law, when after the trial 'of the matters in fact the matters in law (as in this case it was) will be saved to you.”

But having regard to the dangers of a demurrer suggested by that profound lawyer and the precept that abundant caution does no injury, we think the propositions heretofore announced are accepted modern doctrine; and they may be taken as not a little fortified by another settled proposition, vis., that it is for the court and not the jury, or the pleader, to determine by judicial construction the legal effect and force of the terms of a written instrument, provided those terms are unambiguous and are set forth in the petition as the foundation of the cause of action. [Donovan v. Boeck, 217 Mo. 70.] It follows that a demurrer which admits the fact of publication and the words used, does not admit an unfair and forced construction put upon the words by the pleader.

We are not saying that a court, as a matter of law, can by instruction declare a given publication libelous. Such power is denied by our Constitution. But we are saying that a court, in a given case, may declare it not libelous as a matter of law. In libel a defendant has two strings to his bow, the court and the jury; plaintiff but one, the jury. Such is the doctrine of the Heller, ITkman and Branch cases, supra.

In so far forth, then, as learned counsel apparently argue that it was for the jury by their verdict, and not for the court by its ruling on a demurrer, to dispose of the questions discussed on the demurrer, we disallow the argument.

(b) It will be observed that enough appears in the alleged libelous article to show that a political campaign was in progress. Indeed, from the date of the article, November 1, 1906, we judicially know that under our statutes a general election was pending and that a candidate for coroner must have been theretofore nominated, if at all. The article deals primarily and broadly with that election and with the candidacy of Doctor Baron for re-election to that office. It is addressed to the body of the voters of the city of St. Louis in a matter of public concern. It is couched in the form of argumentation by interrogation, a method of persuading and convincing respectably vouched for by no less authority than Socrates himself, as we are told by his pupil, Plato, vis., that of asking questions adroitly framed to suggest the answer and to put those who sensibly answer them in the attitude of establishing the propositions the questioner hopes to maintain and establish.

This case was argued at our bar with another, where the same plaintiff sues the same defendant on another alleged libel relating to the same casualty. We are referred by briefs to the record in that case. Going there, we find that an article appeared in defendant’s newspaper in May, 1906, complaining of Doctor Baron, as coroner, for his conduct in and about the investigation of the death of a little girl, Gertrude Copeland, who, the article says, was torn to pieces by the automobile of Health Commissioner Bond, driven by plaintiff as chauffeur. We stand informed then, by express consent of counsel, that the article in hand refers to that tragedy and the conduct of the coroner at the time. It wants to know if Doctor Baron is the same coroner who let the chauffeur “go free without bond or charge or investigation after the latter had run down and killed a little child in the street.” It asks the the voters of St. Louis whether, if Doctor Baron be the same coroner, this would be a good reason for re-electing him. It proceeds on the assumption that all voters, those having children • and those having none, who think there should always be an official inquiry (before the coroner plants himself as in favor of a chauffeur) when little children are mangled by automobiles, should answer a certain question at the polls, vis., whether a coroner, who does not live up to such rule of official conduct, should be continued in office. The libelous poison, as to the plaintiff, is said to- lurk in the phrase, “run down and killed a little child in the street,” and the other, “the mangling of such little tots.” It is charged by way of innuendo that ‘ ‘ defendant thereby meant to charge this plaintiff with a crime involving moral turpitude, and with willfully and wantonly taking the life of a human being.”

The question then narrows itself and comes to be: Whether the article is libelous per se as to the chauffeur, or will reasonably bear the innuendo and construction put upon it by the pleader.

In expounding the matter certain settled propositions of the law of libel must be reckoned with, vis.:

First. A party cannot support a charge of libel by'showing that the same publication libelled another. To make a case, the publication must be libelous as to the plaintiff, not anotiier. The malice supporting the charge must flow from defendant to plaintiff and be personal to him alone and not another.

Speaking to the point, Foster, J., in Bearce v. Bass, 88 Me. l. c. 542, said: “If, therefore, the defendants’ criticism of the plaintiffs’ work was fair and reasonable, and had no reference to their private or business character, and there was no proof of actual malice on the part of the defendants towards the plaintiffs, then, however much malice may have existed between the defendants and'Mr. Beal” (another party criticised) “cannot make the defendants’ criticism libelous. If the criticism of the defendants was fair and reasonable and in reference to a matter of pub-lie concern, and the plaintiffs are not attacked either in their private or business reputation, then it constitutes no libel because not defamatory; and it cannot be made libelous by any attack upon the private or business reputation of some person other than the plaintiffs, no matter to what extent such malice may exist. [Odgers on Libel, 39, 268; Newell on Libel, 324.]”

So, in this case we are not concerned with a libel ■on Baron that may or may not lurk in the comments made on his official acts, as bearing on his worthiness as a candidate for re-election. Baron is not suing here and the plaintiff cannot recover because the article is censorious of him. In libel every tub stands on its own bottom.

Second. Since one part of a publication may explain another part, and since the intent and the meaning must be gathered not only from the words singled out as libelous but from the context, the maxim, Noscitur a sociis, applies; and (broader yet) all parts of the publication must be read together to collect the true meaning. Phrases and words must not be singled out and wrenched from a context explanatory or indicative of the meaning. The whole article is its own best interpreter. So, words take color from the occasion of speaking them.

In Kilgour v. Evening Star, 96 Md. l. c. 27, it was •said: “In the opening sentences of the publication, it is stated that many prominent citizens were greatly agitated, ‘on account of the alleged stifling by the State’s Attorney of an investigation of the mysterious death, etc.,’ and it is insisted that the word ‘stifling’ was used in its offensive sense, and implied that the State’s Attorney acted from corrupt motives. But we cannot accept this view if the whole article be considered, as must be done if we are to arrive at the true meaning and force of particular words or phrases. It is not proper to separate words or phrases from the context. All parts of the paper should be read in connection, to collect their true meaning.” [Gaither v. The Advertiser Co., 102 Ala. 458; Donaghue v. Gaffy, 53 Conn. 43.]

It is from such rules that the related one is deduced, vis., that if the omission of any part of the libelous publication from the pleading makes a material alteration in the sense, the omission is fatal. [Meriwether v. Knapp & Co., 211 Mo. l. c. 209.] Therefore, in this case the word ‘ ‘ killed ’ ’ and the word ‘ ‘ mangled ’ ’ must be considered in the light of the context. Attending to the context, we find the word “chauffeur”' used and the phrase “run down.” Now, a chauffeur is the driver of a heavy self-propelled vehicle plying on the public streets and capable of great speed — a vehicle propelled by internal combustion engines, steam engines or electric motors, one well calculated to give joy and comfort to its occupants, but abounding in danger and terror to pedestrians. But an automobile is not a lethal weapon like a gun, a pistol, a dagger or a billy. Hence no evil intent to kill or harm is presumed by its mere -use. It does not fill the malignant office of poison in taking life. If it take the life of, or mangle, a child or adult, it is by means of a collision, through negligence or accident. In other words, it runs them down. Appellant’s counsel cite us to cases of doctors suing for libel because of publications accusing them of killing their patients — a tender point; to others where the libel, consists in a charge of killing a pupil by corporal punishment, or a slave in like manner; to other old cases where the bald charge was made of killing, without any explanation of instrument, means or occasion. [1 Rolle’s Abridgment 77.] But none of those cases are in point. At any rate, we shall not follow them here where a form of the verb 4 ‘ to kill ’ ’ is not used in a connection showing it means to charge a crime.

Third. Libel may lurk in ironical words.- (Witness, the funeral oration of one Marcus Antonius on a notable occasion.) It may lurk in a double entente, as in the case put by Rabelais: ‘ ‘ The devil was sick, the devil a monk would be, The devil was well, the devil a monk was he. ’ ’

It may lurk in questions so framed as to indicate the affirmance of a fact though that affirmance be adroitly veiled. The law may well be as astute to reach and cure as is the libeler 'to hide and do harm. Courts no longer construe words in their most favorable and mild sense when an offensive and libelous sense may be fairly deduced from the trend of the publication, indirectly by sarcasm, invective and abuse, or by direct statement. Otherwise, as put by Lord Chief Justice De Grey, in Bex v. Horne — a case-of profound interest to our Revolutionary fathers and students of history — 1 Cowper (American Reprint) l. c. 348: “A man might defame in one sense and defend' in another.” “Words are now construed by courts as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them,” (per Ellenbobotjgh, C. J., in Roberta v. Camden, 9 East l. c. 96). But while courts will not bother themselves to hunt for the mildest sense to be put upon his words, to find a loophole of escape for the libeler by construction, neither will they hunt for a forced and strained construction to put upon them* but they will be construed fairly by their natural import, according to the ideas they were calculated and intended to convey to those to whom they were addressed, and pinned, down to some one commonly accepted meaning, one generally understood — mindful always that language is as significant in suggestion as-in expression, that a libelous charge may be sprung by insinuation, and that defamation begins where honest criticism leaves off.

Bringing the alleged libelous publication to book* is there any sarcasm or abuse or irony in a bad sense? None whatever. The force of the publication is leveled and spent at the coroner and his dereliction of duty— not at the chauffeur. The aim and purpose of the writer is entirely fair and honest, without any badge of malice. It is to inculcate and accent the idea and duty of an immediate and drastic investigation when a child is killed by an automobile. The chauffeur is brought in merely as an incidental factor to identify the transaction concerning which the coroner is criticised. The writer could not have said much less about the chauffeur than he did if the point he was making against the coroner and the moral he sought to draw were to be comprehended by the reader. To be sure, he might have used daintier language and put his screed into a softer or more roundabout form. He might have said the child was overtaken by an automobile and came to its death thereby, or its death was caused thereby, or that its death ensued, or that it gave up, the ghost, etc. But those forms of expression would have lacked nervous force and pith. Instead, he used the word “killed.” Is there anything fairly ambiguous in that word — any sign that the writer was paltering in a double sense ? Or meant anything more than it was deprived of life? None that we can see. The kernel of the thing is, after all, that if the child died as the result of the collision, it was “killed” thereby. Such is the long and short of it, and the only fair import of the word, taken with its context.

Under such circumstances the court would not allow the testimony of any witness' to the effect that the word conveyed to him, as a reader, the idea of a felonious taking of a human life. A construction of that sort would be forced and strained, not natural and reasonable. Neither was there anything for a jury .to pass on by way of putting a libelous meaning or edge on the word “killed.” .This conclusion is within the doctrine of the Heller, Ukman and Branch cases, supra; nor does the Julian case, 209 Mo. 35, aid plaintiff. The language in judgment in that case, “did well in a legislative way,” was construed to he ambiguous, one natural sense of it being libelous. In such case, the doctrine applies that the apprehension of the reader is •the touchstone of interpretation. It was happily said by Goode, J., in a case on which I cannot put my finger, that in this aspect a libel or slander is like unto a jest —i. e., the prosperity of each lies in the ear of the hearer — thus hitching the gravity of the law to the car of the light philosophy of Rosaline:

“A jest’s prosperity lies in the ear
Of him who hears it, never in the tongue
Of him that malms it.” (Love’s Labour’s Lost, Act Y., Sc. 2.).

Fourth. Finally, freedom of speech is guaranteed to the individual and newspaper by the Constitution. ' Courts are charged with a duty they may not pretermit, to see to it that it is not abridged. It is, however, the use and not the abuse of free speech and free press that is guarded by the fundamental law as sacred. So long as a publication is not directed to a public officer by charging corruption or other criminal misfeasance or non-feasance, so long as it is not directed to the defamation of an individual in his private character or business, but is directed to a matter of live public concern and is for an honest and not a defamatory purpose, it is qualifiedly privileged. Within lines suggested, it would be intolerable to hold that a newspaper or individual — the one the same as the other — might not comment fairly, freely, with vigor and severity. “Everyone has a right to comment on matters of public interest and general concern, provided he does so fairly and with an honest purpose, however severe in their terms, unless they are written intemperatelv and maliciously. Every citizen has full freedom of speech on such subjects, but he must, not abuse it.....The right to comment upon the public acts of public men is tbe right of every citizen, and is not the peculiar privilege of the press..... Every one of the public is entitled to pass an opinion on everything which in any way invites public attention.” [Odgers, Libel and Slander, 34-36.] Such is the universal rule in this vital matter. [Bearce v. Bass, 88 Me. supra; Branch v. Knapp & Co., supra; Triggs v. Sun Printing and Pub. Assn., 179 N. Y. 144.] And see an illuminating article by Van Vechten Veeder in 23 Harvard Law Review, p. 413.

The right of freedom of speech, of fair comment with an honest purpose in matters of public concern, is on the foot of pro bono publico and founded on public policy. Free discussion is the foundation on which :free government itself is builded. That lost, all is lost —the two exist ■ ór perish together. They mean the same thing. It is only in despotisms that one must speak sub rosa, or in whispers with bated breath, around the corner, or in the dark, on a subject touching the common welfare. It is the brightest jewel in the crown of the law to seek and maintain the golden mean between defamation on one hand and a healthy and robust right of free public discussion on the other.

The office of coroner is of great antiquity and dignity. The power of that office at common law involves the duty of investigating the causes of sudden; violent and unnatural deaths. [7 Am. and Eng. Ency. Law '(2 Ed.), p. 602.] “The most important function of the office of coroner is that of holding inquests as to the ■causes of violent and extraordinary deaths.” [Ibid., p. 603.] His common law powers are also declared by statute. “A coroner .... shall take inquests of violent and casual deaths happening [in his county] or where the body of any person coming to his death shall be discovered in his county.” [R. S. 1899, sec. 6629.] Another section (6633) refers to his duty to investigate when he is notified of the dead body of any person “supposed to have come to his death by violence or casualty.”

We shall not hold that the death of a child on the public street, killed by an automobile, is not a matter of intense interest to the public. The injury of one, in that behalf, is truly the concern of all. We shall not hold that the act of a coroner in releasing the chauffeur or in refusing an inquest at the outset, to locate the blame, if any, for such a casualty, is not the proper subject for animadversion by any public print in an article couched in the terms of that complained of, when the chauffeur who drove the machine is referred to as having run down and killed the child.

The article being fair and with an honest purpose, in no wise ear-marked with abuse and vituperative indications of malice, it was privileged as a matter of law. We hold it was not libelous per se; and that the innuendo pleaded was a forced and strained one.

The ruling on the demurrer was well enough. Let the judgment be affirmed. It is so ordered.

The case came into Banc on a dissent from the foregoing divisional opinion. In Bane on a rehearing it was adopted by a majority of the judges,

Valliant, J., concurring in the result; Gantt, Graves and Kennish, JJ., concurring in full; Woodson, J.f dissenting; Burgess, G. J., absent.


author: GANTT, P. J.

text:
    THE STATE v. H. W. MORRIS, Appellant.
    Division Two,
    November 29, 1910.
    1. BILL OF EXCEPTIONS: Signed by Disqualified Judge as “Acting Judge.” Where the regular judge disqualified himself and called in another judge, who tried the case and overruled defendant’s motion for a new trial, and granted him time to. file a bill of exceptions, and before that time expired went out of office, the. regular judge may, under the statute (Sec. 2032, R. S. 1909), as “acting judge of the court where the case was heard,” settle, approve and si'gn the bill of exceptions, when timely presented, notwithstanding'he had been disqualified to try the case.
    . 2. FALSE PRETENSE: Money Obtained Upon Promise. The essence of obtaining money or property by means of false and fraudulent representation is that the money or property must be obtained by means of the false pretense. To receive money upon a promise to obtain a deed if the owners of the land will sell it when the balance of the purchase price is paid, is not such offense. The offense is a false and 'fraudulent representation of an existing fact; not a mere promise to do something in the future, in reliance upon which the promisee pays money to the promisor.
    3. -: -: Agent to Sell Land: Continuance. If defendant was the agent of the owners to sell lands at the time the prospective purchaser paid him money in pursuance of an agreement that a deed would be made when all the purchase price was paid, and after the agency was dissolved and the lands taken off the market such representations were not repeated, and thereafter defendant and such purchaser dealt with each other upon an assumption that defendant could procure a deed if the purchaser paid for the land in full when it should later be placed upon the market, there is no false pretense. In that case, it was" money paid to the defendant to the purchaser’s use, and which he was bound to return on demand, and failure'to return it created a civil liability, but it was not the offense of obtaining money under false and fraudulent pretenses.
    Appeal from Stone Circuit Court — Son. A. W. Lincoln,. Special Judge.
    Reversed,

      G. W. Thornburg and T. L. Viles for appellant.
    The gist of this offense is the false and fraudulent representations made by the defendant. Therefore these must be clearly established. State v. Dines, 206 Mo. 675. All the representations made by the defendant in this case as testified to were made to H. C. Morris and his wife, and were made about the 27th day of August, 1907, and prior thereto,' and all were at the time true, as defendant H. W. Morris was at that time a sale agent for the Crocker lands in Stone county, and .authorized to contract the sale of the land mentioned in this case, and his authority as such agent continued until about September 16, 1907. While the acts and conduct of the defendant may have been reprehensible from a moral point of view, yet the evidence in this case does not establish the essential elements of the offense of obtaining money under false pretenses as defined by the statute.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    No valid bill of exceptions was ever filed in this case. Judge Moore having disqualified himself from trying this ease, bad no authority thereafter to sign the bill of exceptions. Judge Lincoln, during his term of office, and Judge Page, as his successor in office, are the only persons who had authority to sign the bill of exceptions herein. Had Judge Lincoln been reelected, he would still have had jurisdiction to sign the bill of exceptions. Judge Moore, being incompetent to try this case under the provisions of see. 2594, R. S. 1899, and having so declared his incompetency by an order of record, he could not thereafter legally sign the bill of exceptions in this ease. State ex rel. v. Perkins, 139 Mo. 118; State v. Gordon, 196 Mo. 185. In the light of our decisions Judge Lincoln was the proper one to sign the bill of exceptions herein until he went out of office on the first Monday in January, 1909. State v. Gordon, sapra; Mayes v. Palmer, 206 Mo. 301; State v. Grant, 124 Mo. App, 129; Ranney v. Packing Co., 132 Mo. App. 324. If all the cases tried by Judge Lincoln in counties outside of his circuit, and in which he had not signed the bills of exceptions at the time he went out of office, are to be treated just the same as all the cases tried by him in his own circuit and in which he had not signed the bills of exceptions at the time he went out of office, then there can be no doubt but that Judge Page, his successor in office, was the proper person to sign the bill of exceptions in this ease, under the provisions of sec. 731, R. S. 1899. If such cases, tried out of the circuit by a regular judge', are not to be so treated, then there is no statutory provision for any one to sign such bills of exception after the judge who was called in to try such cases has gone out of office. There is no valid bill of exceptions, and, the record proper being free from error, the judgment of the trial court should be affirmed.
   GANTT, P. J.

This is an appeal from a sentence of the circuit court of Stone county. The defendant was indicted at the March term, 1908. Judge John T. Moore, the regular judge of that circuit, disqualified himself, by his order of record, and called in Judge A. W. Lincoln of the criminal court of Greene county. At the November term, 1908, Judge Lincoln, with a jury, tried the cause, and defendant was found guilty of obtaining money under false pretenses, and his punishment assessed at two years in the penitentiary. His motions for new trial and in arrest were heard and overruled, and he was duly sentenced. At the same term the court made an order allowing defendant to file his bill of exceptions by the first day of the next regular term of the said court, which was March 8, 1909. Judge Lincoln’s term of office as judge of the criminal court of Greene county, expired January 1st, 1909, Judge Alfred Page having been elected at the N|ovember election, 1908, and qualified as such. The defendant prepared his bill of exceptions and tendered the same to Judge John T. Moore on the first day of the March term, 1909, and Judge Moore signed the same and ordered it filed.

I. Counsel for defendant have argued the exceptions saved during the trial, but they are met by the contention that there is no valid bill of exceptions; that Judge Moore, the regular judge of the circuit court, having signed the same after having disqualified himself on the record to try the cause and called in Judge Lincoln of the criminal court to preside on the trial, could not lawfully sign the bill. Judge Lincoln’s term of office had expired January 1, 1909, and the bill of exceptions was not tendered until March 8, 1909.

Section 731, Revised Statutes of 1899,. in force when this bill of exceptions was signed by Judge Moore, and now, provided: “In any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the ■ case was heard.”

That Judge Moore was not the “succeeding judge” to Judge Lincoln within the meaning of the foregoing section is, we think, too plain for doubt. Judge Page succeeded Judge Lincoln as judge of the criminal court of Greene county, but as he did not sign the bill, it is unnecessary to determine whether he could have lawfully signed the bill in cases where Judge Lincoln had acted in other jurisdictions, when called to act in the place of another judge under our statutes. The question is, did Judge Moore have authority to validate the bill under the clause “acting judge of the court where the case was heard.” He was the regular judge of the Stone circuit court, and was both de facto and de jure “the acting judge of the court where this case was tried,” and therefore he came within the strict letter of the statute and was authorized to sign the bill, unless the contention of the Attorney-General, that he was not authorized to sign the bill by reason of his having disqualified himself on the record on account of being interested and prejudiced is sound. In a word does this disqualification attach itself as a necessary exception to the otherwise plain and unconditional words of the statute and require that it shall be read into the act?

It has often been said that the letter of the statute may be enlarged or restrained according to the true intent of the law, because the reason of the law prevails over its letter and one section in a statute sometimes indicates the true intent of the lawmaker and the statute can only be properly construed by reading it as a connected whole.

An example of this principle in the interpretation of statutes is found in Bank v. Graham, 147 Mo. 250, in which the right of parties to agree upon a special judge was held to be dependent upon the regular judge being disqualified. Recurring now to the law as it existed prior to the enactment of section 731, Revised Statutes of 1899 (now sec. 2032, R. S. 1909).

It was settled that an incoming or succeeding judge’s only course when called upon to'pass upon a' motion for a new trial, filed before his predecessor, but not disposed of, was to grant such motion. [State ex rel. v. Walls, 113 Mo. l. c. 45; Woolfolk v. Tate, 25 Mo. 597; Cocker v. Cocker, 56 Mo. 180.] The ground upon which that doctrine was based was that a party to a suit has the same right to have his motion for a new trial heard and duly considered as he has to institute or defend an action, and it is better to allow a new trial where the court for any cause cannot consider the merits of an application for that purpose than to refuse it, otherwise irreparable injury may be done, whereas on the other hand the prevailing party in the verdict will only suffer by delay and generally will secure another verdict if entitled to it. The reason for denying the motions in the circuit court was that the incoming judge had not heard the evidence and could not therefore intelligently pass upon the motion. But in the march of time stenography had come into general use, and the Legislature had provided for official stenographers to take all the evidence and exceptions during the trial and to transcribe the same into long hand, and accordingly the incoming judge has as compíete a history of the trial as the judge who tried it could have had; and to prevent the unnecessary delay and cost of a new trial, the Legislature at the revising session of .1889 enacted section 2171 of that revision, which remains the same today in section 2032, Revised Statutes of 1909 (sec. 731, R. S. 1899), whereby the incoming or succeeding' judge or the acting judge of the court where the case was heard is required to sign the bill of exceptions, and this was held to carry with it the coincident right to pass upon the motion for new trial, without which the power to sign a bill of exceptions would be .ineffectual. [State ex rel. v. Perkins, 139 Mo. 106; Fehlhauer v. St. Louis, 178 Mo. 653.] The statute is highly, remedial and we have ruled that it should be liberally construed to effectuate the purpose for which it was enacted. Unless this bill could be signed by Judge Moore, it is extremely doubtful if defendant could have had an appeal. In all cases of felony in which a defendant has been convicted, an appeal to this court is allowed, and where he is unable to pay the costs of a transcript the statute requires that the court shall order the same to be furnished and the stenographer’s fees taxed against the State or the county as may appear. These statutes are in keeping with the spirit and humanity of the .age in which we live. They are in marked contrast with the English system which allowed appeals in all civil matters, but denied them when the life or liberty of the citizen was at stake. Looking closer into this statute and the clause of the section under which Judge Moore signed the bill of exceptions, it was the obvious purpose to supply a judge in place of the judge who heard the cause but whose term had expired before he signed the bill. The act proceeded on the idea that the appellant was entitled to have his record made up for his appeal, and as the bill of exceptions was made out and certified by a sworn officer of the court, the danger of imposing a false bill on the succeeding judge, or the acting judge of the court iu which the cause had been heard, was reduced to a minimum, especially as opposing counsel are always allowed to make objections and have corrections made. Conceding that, generally speaking, a judge disqualified can take no further step in a case, but that in the absence of a statute like this, would clearly have no authority to sign a bill of exceptions, when the formal and perfunctory nature of the act allowed by this section is considered, there would seem no ground to question the constitutionality of such an act. In this case the disqualification was upon grounds of interest and prejudice against defendant, and as the defendant waived the disqualification and presented the bill to .Judge Moore, he, of course, does not challenge the legality of the signing, and we think the State ought not to be heard to complain. The statute is broad, it is true, but without giving it a liberal construction the defendant is practically deprived of his appeal from a conviction of a felony and sentence to the penitentiary. The statute has been in force for more than twenty years and no complaint appears to have been made of an abuse of its provisions. Indeed, in the very nature of things it can rarely be invoked. While ordinarily a disqualified judge can do nothing in a case in which he is disqualified, for the most obvious reasons, yet it is not true that he can do nothing. When a change of venue is granted on account of the prejudice of the judge, the statute imposes upon him the duty of calling in another judge to try the cause and of fixing the time for the trial. Surely the mere act of signing a bill of exceptions already settled and agreed upon is not open to the objections that a defendant might make to a disqualified judge selecting his successor or substitute for the trial of the case. In view of the unqualified terms of the statute and the fact that it was the evident intent of the Legislature to provide a means for every appellant to have his bill of exceptions made a part of the record and the liberal construction heretofore put upon this section, we have reached the conclusion that Judge Moore, in the circumstances, had the right to sign the bill and make it a part of the record, and the exceptions must be considered.

II. The defendant insists that the evidence will 'not sustain the verdict and sentence.

The testimony established that the heirs or devisees of one Crocker, a citizen of Massachusetts, owned a considerable quantity of wild and unoccupied timber lands in "Stone county of this State. It appears that in 1906 they were desirous of selling these lands. They made an arrangement with James R. Orr of Webb City, Missouri, to inspect the lands and make report of their value. The defendant resided at Galena, the county seat of Stone. Orr had no acquaintance with the lands or their value and he employed defendant to accompany him on an inspection of the lands, which consumed about three weeks of time. Orr made his report to the Crockers and he testified they wrote him they would pay him a liberal commission to sell the lands. This was in November, 1906. Thereupon Orr wrote defendant, Morris, that if the latter would find purchasers, Orr would give him, defendant, two-thirds of his commission. He stated that the arrangement was that defendant was to find the purchaser and fill out applications furnished him by Orr, and Orr would prepare the deeds and send them to the Crockers to execute.

Defendant acting under this arrangement proceeded to get purchasers from December, 1906, till September, 1907, and deeds were made and the trades consummated. On September 16, 1907, Orr wrote defendant that owing to some adverse claim, the Crockers had withdrawn the lands from the market. The state attempted to show that defendant was not authorized to receive any of the purchase money, and Orr stated he did not authorize him to receive it, but on cross-examination he answered that when the first sale was made he sent the deed to defendant and told him to get the money, but witness did not remember that as to the other deeds he said anything about receiving the money. There was never any trouble about defendant accounting for all that came into his hands up to September 16, 1907. On that date Orr wrote him the letter notifying him of the withdrawal. Prior to that time on February 5, 1907, defendant wrote Orr that one> Henry 0. Morris, no relation of his, wanted to purchase the southeast quarter of the southeast quarter of section 33, township 24, range 24, and had deposited $50 with defendant, and wanted to pay the balance in one, two and three years, and notified him several others desired to purchase land, and when they got $50' to pay down he would take their applications. Orr wrote the Crockers and they declined to sell the southeast quarter of the southeast quarter on these terms. No complaint was made by Henry Morris that this money was not returned.

The indictment in this case charges the fifty dollars was obtained on the representation that defendant was the agent for the Crockers and had authority to sell the southwest quarter of the southeast quarter of section 33, township. 24, range 24, in Stone county, and that H. 0. Morris paid him said money by reason of said false representations.

H. O. Morris testified he had been wanting to buy some of the Crocker lands, and heard defendant was the agent, and he came up and bought forty acres on payments $50 down, and then some time after that he looked over the lands and saw some more forties and he made some payments on same and inquired of defendant if he could get the land, and defendant said, “Yes, sir, you can get the land if you pay the money on it, and the land can'be made raise the rest of the money; then the land will he yonrs without a doubt and you will have the first refusal.” Thereupon he says he paid $50 on the southwest quarter of the southeast quarter in February, but never paid the remaining $50'. The witness was illiterate and could not read, and it is exceedingly doubtful what forty he referred to, but he answered in response to the prosecuting attorney’s question and ■ that referred to the southwest quarter of the southeast quarter; but- one thing seems clear, that the forty acres he paid on was not the forty on which the $50 was paid by his wife at a subsequent dató, and which forms the basis for this prosecution, and all that evidence should have been excluded. It simply confused the jury and the court in getting at the case stated in the indictment. He finally stated he sent his wife to purchase.

She testified that on the 14th of October, 1907, she went to Galena on her way to Oklahoma and paid defendant $50 on the southwest quarter of southeast quarter of section 33, township 24, range 24, in Stone county, for her husband, for the Crockers. She testified to paying defendant the $50 on that date. He represented himself to be the agent of the Crockers to sell this land in August, 1907. That he would send the money and the Crockers would make the deed. These statements were made in August, 1907. She had a slight' memory of hearing that defendant was dealing with the land through another agent in Jasper county. She drew the $50 out of the bank, and paid defendant under the instruction of her husband. Defendant stated that when all the amount of the contract price was paid in on the land, her husband would get his deed. The Crockers were to make the deed. H. C. Morris never tendered the balance of the purchase money. The only representation he made was that he would get them a deed when the money was all paid in. She also testified her husband was to get the balance of the money ont of ties to be made from the timber on the land. H. C. Morris proceeded after paying’ the $50 to cut the timber and make cross-ties until the latter part of October, 1907, when the agents of the Crockers went upon the land and marked the cross-ties and notified H. C. Morris that he had no title, and defendant was not authorized to sell or permit him to make the ties.

Henry C. Morris testified that after the agents of the Crockers took possession of the ties he went to Galena and talked to the defendant abont purchasing this particular forty acres, and defendant said it was for sale, and that was about all that he said at that time, and he told the defendant he wanted this forty and would be back again and see about it, and later he told his wife to buy it. He could not fix the date when he had this conversation with defendant about this particular tract.

S. A. Johnson testified for the State that he was present in defendant’s office in Galena after the ties had been branded and claimed by the Crockers when Henry C. Morris had a talk with the defendant, and Henry told the defendant he thought he ought to pay him his money back as he could not get his deed, and the defendant told him he would not have any talk about it because “you fellows are not going to get me to say anything to convict myself. ’ ’ He seemed to think that the witness and Henry Morris were endeavoring to get testimony against him.

C.. B. Swift for the State testified to a conversation he had with the defendant in 1907, and defendant told him he was only acting under another agent at Webb City. He spoke about the parties making ties on this land and that he would like to get more authority so he could stop people from cutting the timber.

The defendant testified in his own behalf and stated that in September, 1907, H. C. Morris came to-, see him about this forty acres, and defendant told him he had just received a letter saying the land was off of the market, and that he thought he wrote Morris a letter and told him as well as he could, and Morris came to see him and said: “Well, I want that forty that is right in front of my house and joining my land, and I want to pay you some money on that land to hold it so when it comes on the market I can get it.”' To which defendant replied: “I guess that will be all right,” and along in October Morris’s wife came and said that Henry had sent $50‘ by her, and he took the-money and gave her the following memorandum: ‘ ‘ Galena, Mo., 10|14, 1907, Eeceived of H. C. Morris $50.00 on southwest quarter of southeast quarter of section 33, 24, 24. H. W. Morris.” Afterwards when Morris came to see him about it at the time they had arrested the defendant, he commenced talking about it and he told Morris: “Well, you know how the thing stands, you know I never sold that land, it is off the market and you know I told you not to cut ties on that land. I wrote you and then hired a team and came out to your house and you told me you had not cut a tie on that land, and if you had cut it it was your fault, and I told him I would not pay any money back. He only paid me the money he had, to hold.” He testified that he was -selling this land under Mr. Orr. The arrangement was that he was to find purchasers and send in the names to Orr- and Orr would send the deed to the Crockers and when it was-executed he would send it to the defendant and defendant. was to collect the money and send it to Orr; after that Orr would send the deed to a bank and the cashier of the bank would pay defendant his commission there. All of his transáetions in reference to the sale of the-land were approved except two applications he sent in for selling on time, which the Crockers turned down. He testified positively that he never gave Morris any authority to cut timber on the land. He testified that lie told Morris that this tract was off the market, but when it came back on the market lie would give Mm the first choice. That he received the $50 from Morris to hold him that piece.

Charles Racliff testified for the defendant that he knew H. 0. Morris and the defendant, and was present during the conversation when Morris wanted the defendant to pay back some money he had paid him. When he asked for the money defendant told him: “No, our contract was, when you pay the balance of the money and the land came back on the market, I was to fulfill my part of the contract.” In that conversation, H. 0. Morris admitted that he knew when he paid the $50 that the land was off the market, but he said he thought he had the right to cut the ties, but had been stopped, and as he could not go on cutting the ties he ought to have his money back. But the defendant stated, “The agreement was, you pay me this much money on the property and it was off the market, and when it comes back on the market, you are to have the first call, that was our understanding.”

That the defendant’s representations that he was the agent of the Crockers for the sale of this land were true at the time he made them in February, 1907, and up to September 16, 1907, is established by the testimony of the State. Mr. Orr’s testimony on this point leaves no doubt whatever. The negotiations for the purchase of the southwest quarter of the southeast quarter of section 33, township 24, range 24, began in the month of August, 1907, and at that time the defendant was the agent for the sale of this land.

Mrs. Laura Morris’s testimony discloses that the defendant made no representation whatever as to the agency at the time she paid the fifty dollars for her husband. She testified that the only representation he made at the time she paid him the money was that he would get them a deed when the money was all paid in. And Henry C. Morris himself testified that when he began to negotiate for this particular forty acres the defendant said it was for sale, and that was about all that was said at that time. He was not present when his wife paid the fifty dollars for him. When Henry C. Morris, after making the agreement with the defendant that he was not to have a deed to this land until he had paid the whole purchase money, went upon the land and commenced to make cross-ties out of the timber thereon and was stopped by the agents of the Cro'ckers, he went to the defendant and demanded his money back or a deed. He knew he was not entitled to a deed because he had never paid the remainder of the purchase money or tendered it and therefore he demanded a return of his money. Conceding that the defendant ought in law and in good morals to have returned the money, still the evidence falls far short of proving that he had. obtained the money from Morris and his wife by means of any false and fraudulent representations made at that time. Nor will the fact that he had previously represented that he was the agent and authorized to sell'the land, when he was in fact so authorized, attach itself to the subsequent transaction made after the Crockers had taken the land off of the market so as to make him guilty of having obtained the fifty dollars by means of false and fraudulent representations as alleged in the indictment. Clearly he was not guilty if, as his testimony and that of other witnesses tends to prove, he had advised H. C. Morris that the land was then off the market and Morris knowing this relied upon the defendant’s promise to obtain him the deed when he had paid for the whole tract when the land was subsequently put on the market by its owners. This was a promise. The very essence of the offense of obtaining money or property by means of false and fraudulent representation is that the money or property must be obtained or the fraud effected by means of the false pretense. And as no representations were made to the prosecuting witness by the defendant after the lands had been taken off the market, it seems to us that the State wholly failed to .establish the essential element of the crime, to-wit, the false and fraudulent representation by which Morris was induced to give up his money. Had the previous representations made as to his agency and his right to sell prior to the 16th of September, 1907, been false and fraudulent, instead of having been true, as was established by the State, and the dealings between Morris and the defendant had continued upon the faith of those false and fraudulent representations, the offense might have been established, but as the representations were, true at the time they were made and were not repeated after the lands were taken off of the market, but Morris and the defendant dealt with each other simply upon the assumption that defendant could procure a deed if Morris paid the full price of the land when it should later be put upon the market, the case simply becomes one of money paid to the use of Morris, which defendant had no right to receive, and was bound to return to Henry C. Morris upon demand. But it falls far short of the criminal offense of obtaining money under false and fraudulent pretenses. In fact it was a case simply of Henry Morris relying upon a promise of the defendant to obtain a deed for him in the future and was not a false and fraudulent representation of an existing fact upon which he was authorized to rely and part with his money. While the defendant should have returned the money to Morris upon his demand, it was simply a breach of a civil liability and not a crime of obtaining money under false and fraudulent pretenses.

While, of course, in the discussion of this matter, the'failure of the State’s evidence alone can properly be considered, it would appear that Henry Morris himself was not entirely without fault. According to his own testimony, that he was not to have this land until he had paid the full purchase price therefor, he had no

right to cut and destroy the timber thereon. The transcript abounds in testimony that his purpose in making these preliminary partial payments was to enable him to cut timber and make cross-ties thereof, so that he might pay for the land out of the timber. His testimony established no such right under his agreement with the defendant and the defendant’s testimony shows that he warned him not to cut the timber.

After a full consideration of the testimony in this case we have reached the conclusion that the testimony wholly failed to establish the essential elements of the crime with which the defendant was charged.

The judgment must be and is reversed and the defendant discharged.

Burgess and Kennish, JJ., concur.


author: KENNISH, J.

text:
    THE STATE v. DAVID WILSON, Appellant.
    Division Two,
    November 29, 1910.
    1. GOOD CHARACTER: Instruction. An instruction telling the jury they may consider the testimony relating to defendant’s good character, but his 'good character will not excuse the offense, if upon all the facts he is guilty, is correct.
    2. JUROR: Convict: Raised in Motion for New Trial. An assignment that one of the jury had been convicted of a felony and had not received a pardon restoring his citizenship and was therefore not qualified to sit as a juror, comes too late, if made for the first time in a motion for a new trial. The statute (Sec. 7260, R. S. 1909) provides that “no exception to a juror on account of his citizenship, non-residence, state or age or other legal disability shall be allowed after the jury is sworn.”1 The words “other legal disability” are broad enough to include the said objection to the juror.
    Appeal from Buchanan Criminal Court. — 71 on. Thos.' F. Ryan, Judge.
    Affirmed.

      Mytlon & Parkinson for appellant.
    (1) Instruction seven as given by tbe court fails to declare the law correctly on tbe question of good character-. Tbe object of tbe introduction of evidence respecting good character is tbe improbability that a person of good character would have committed tbe offense alleged against him, and to lay such evidence before tbe jury for tbe purpose of inducing belief that either mistake or misrepresentation has occurred on tbe part of tbe prosecution. State v. Thomas, 68 Mo. 615. Tbe instruction given certainly fails to properly instruct tbe jury on that point. (2) Laws 1903, p. 210, sec. 3804, defines what persons shall be exempt from jury service. Tbe seventh subdivision of this section prohibits any person from serving on a jury who has been convicted of a felony. Error was committed by tbe trial court in refusing to permit him to prove that said Freeman, who was one of tbe jurymen, bad been convicted of burglary and larceny, December 12, 1904, in the criminal court of Buchanan county, and that tbe citizenship bad not been restored' to him. Appellant only learned about tbe incompetency of said Freeman after tbe trial of bis cause and therefore could not take advantage of this fact in a moticm to quash tbe panel, and tbe only way tbe incompetency of this juryman could be raised was on tbe motion for a new trial.

      Elliott W. Major, Attorney-General, and. Jolm M. Dawson, Assistant Attorney-General, for tbe State.
    Tbe jury was regularly impaneled, and sworn to try tbe cause, and no objections are made-thereto. Tbe appellant complains of a member of tbe jury who sat in the case, in that said juror bad been convicted of a felony, and bad not prior to bis service on tbe jury been granted a pardon and restored to citizenship. Appellant is in no position to complain, as the trial court properly overruled the motion for new trial because neither the appellant nor his attorney made affidavit that they did not know of the disqualification of said juror at the time or prior to the time appellant made his challenges. State v. Matthew, 202 Mo. 143; State v. Richardson, 194 Mo. 326.
   KENNISH, J.

The prosecuting attorney of Buchanan county on the 30th day of January, 1909; filed an information with the clerk of the criminal court of that county charging the defendant, David Wilson, with a felonious assault with intent to kill upon Frederick Bolsom. Upon a trial the defendant was convicted of a common assault and his punishment assessed at a fine of $100 and imprisonment in the county jail for the term of six months.

Motions for new trial and in arrest of judgment were filed, overruled, and judgment pronounced upon the verdict. The defendant then prayed an appeal, which was granted by the court to the Kansas City Court of Appeals. The Kansas City Court of Appeals at the March term, 1910, ordered the cause certified to this court for the reason that the offense charged was a felony, and therefore within the appellate jurisdiction of this court, and the cause is now before us for decision.

In appellant’s brief but two alleged errors of the trial court are relied upon for a reversal of the judgment, and we shall set out in this opinion only such parts of the record as are necessary in passing upon the errors thus assigned.

First. Appellant complains of error in instruction numbered 7 given by the court of its own motion. This instruction is as follows: “In determining as to the guilt or innocence of the defendant, you should take into account the testimony in relation to his character as shown by the evidence, and you should give suela testimony suela weight as you may deem proper; but if, from all the evidence before you, you are satisfied beyond a reasonable doubt, as defined in these instructions, that the defendant is guilty, then his previous good character, if shown, cannot justify, excuse, palliate or mitigate the offense, and you cannot acquit him merely because you may believe he has been a person of good repute.”

This instruction is in form as approved in a number of cases by this court, and no good reason has been advanced why we should now enter upon a reconsideration of the question as to whether it is a correct statement of the law upon the subject of good character. [State v. Darrah, 152 Mo. 522; State v. Cushenberry, 157 Mo. 168; State v. Wertz, 191 Mo. 569.]

Second. In the seventh ground of the motion for a new trial it is alleged that one of the jurors named Freeman had been convicted of a felony, and had not received a pardon restoring his citizenship, and therefore that he was not qualified to sit as a juror in the case; that by answering in the negative on his voir dire if he knew of any reason why he could not sit as a juryman in the case and give defendant a fair and impartial trial, the defendant was thereby deceived and misled as to his qualifications.

No affidavit of either the defendant or his counsel was filed showing when the alleged incompetency of juror Freeman was discovered, nor was any affidavit filed in support of the facts stated in the said seventh ground of the motion for a new trial. On the hearing of the motion the. defendant offered evidence tending to prove the facts alleged in the said seventh ground thereof. The court sustained an objection to the evidence thus offered and the action of the court in refusing to permit the defendant to prove such facts is now assigned as error.

Passing over all questions of practice and the rules of the trial court as to the manner in which the defendant sought to establish the truth of the facts alleged in the seventh ground of the motion for a new trial, and considering the question broadly in the light most favorable to appellant, it will be seen that there is an entire absence of merit in this contention. It is provided by section 7260, Revised Statutes 1909', that “no exception to a juror on account of his citizenship, non-residence, state or age or other legal disability shall be allowed after the jury is sworn.” The foregoing statute has been uniformly construed by this court as denying the right of a party to a civil or criminal cause to object to a juror after the jury is sworn for any of the causes mentioned in said section. [State v. Ross, 29 Mo. 32; State v. Sartino, 216 Mo. 408; Orr v. Bradley, 126 Mo. App. 146; Pitt v. Bishop, 53 Mo. App. 600.] And the phrase, “or other legal disability,” in said section 7260, is broad enough to include the objection, made to the juror in this case.

This court will take judicial notice of the fact that article 4, chapter 64, Revised Statutes 1909, entitled, “Juries in Counties Containing Cities of One Hundred Thousand and Less than Pour Hundred Thousand Inhabitants,” was in force in Buchanan county at the time of the trial of this cause. Section 7327 of that article provides that certain persons shall not be permitted to serve as jurors, and the seventh clause thereof is as follows: “Any person who has been convicted of felony.”

In the ease of Pitt v. Bishop, 53 Mo. App. 600, a case appealed from Buchanan county, the court had before it for- construction the Act of 1891 relating to juries, the eighth section of which was identical in its language with section 7327, supra. Discussing the statute thus before it, the court, at page 605, said: “Section 9 of the act provides that any party may challenge a juror for cause for any reason mentioned in section 8 of the act, and also for any cause authorized by the laws of the State. But there is no provision in the act declaring what shall be the effect of a failure to challenge after the jury is sworn. But, by turning to said section 6061, we find that no exception taken to a juror on account of his citizenship, non-residence, state, age or other legal disabilities shall be allowed after the jury is sworn. Taking the several provisions of these two statutes, to which we have referred, together, and construing them as one statute, we must conclude that the other legal disabilities, spoken of in section 6061, are to be regarded as such as are provided in the eighth section of the Act of 1891. This interpretation gives full effect to the terms used in that section and is reasonable and consistent with all the provisions on the subject. ’ ’

We hold that the Court of Appeals correctly interpreted the statutes before it, and under the law as construed in the foregoing cases the trial court did not err in refusing the defendant a new trial because .of the incompetency of the juror, even though that ground of the motion had been supported by proper and sufficient affidavits.

The Attorney-Oeneral urges in his brief that the motion for a new trial was filed more than four days after the verdict was returned, and therefore only the record proper is now before this court for review. While this contention finds support in the record, yet because of some confusion and uncertainty of dates as shown by the transcript, we have given the defendant the benefit of all exceptions preserved in the motion for a new trial and have considered the case not only upon the two errors assigned, but upon the entire record, and finding no error therein the judgment is affirmed.

Gantt, P. J., and Burgess, J., concur.


text:
    THE STATE v. MERT HOLMAN, Appellant.
    Division Two,
    November 29, 1910.
    BILL OF EXCEPTIONS: Due When Motion for New Trial is Overruled. The bill of exceptions must be filed at the term at which the motion for a new trial is overruled, or an order of court must be made at such term permitting appellant to file his bill at a later term, else no exceptions can be considered on appeal. So that where defendant filed his motion for a new trial within time, and that motion was overruled at that term, whereupon he on the same day filed his'motion in arrest and that motion was continued to the next term, and at said next term defendant for the first time obtained an order extending the time in which to file a bill of exceptions, that bill, though filed within the time fixed by that order, cannot be considered on appeal, because it was not filed, nor an order made to file later, at the term at which the motion for a new trial was overruled.
    Appeal from Pike Circuit Court. — Hon. David H. Eby, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The information is sufficient in form and substance. R. S. 1899, sec. 1837; Sherwood’s Criminal Law, p. 86; Kelley’s Criminal Law, sec. 535; State v. Houx, 109 Mo. 658; State v. Burries, 126 Mo. 566. (2) All exceptions taken during the trial of a cause must be preserved in a bill of exceptions filed during the term of court at which they were taken, or within such time after the expiration of the term as the court may grant. A continuance of the motion in arrest from the June term to the October term did not save matters of exceptions. There being then no valid bill of exceptions, nothing but the record proper can be considered on this appeal. State v. Lawler, 2201 Mó. 30; State v. Jackson, 209 Mo. 399; State v. Harroun, 199 Mo. 260;, State v. G-oehler, 193 Mo. 180.
   GANTT, P. J.

On the 14th day of June, 1909, and during the June term of the Pike County Circuit Court, the prosecuting attorney of said county filed in said court an information, duly verified, charging that Mert Holman, the appellant herein, did, “on or about the 9th day of March, 1909, in the county of Pike and State of Missouri, in and upon one Cora Flowers, a female, unlawfully, violently and feloniously did make an assault, and her, the said Cora Flowersj then and there unlawfully, forcibly and against her will feloniously did ravish and carnally know, against the peace and dignity of the State.”

Appellant was thereafter duly arraigned, entered a plea of not guilty, and was tried by a jury, which, on July 1, 1909, and during said June term of court, returned a verdict finding appellant guilty of rape, as-charged, and assessed the death penalty. On the 5th day of July, 1909, and during the said June term of court, .the appellant filed his motion for a new trial, which motion was by the court overruled on the 14th day of July and during said June term of court. On the 14th day of July, 1909, and during said June term of court, the appellant filed his motion in arrest, which was by the court continued until the next regular term. On the 12th day of October, 1909, and during the October' term of said Pike County Circuit Court,- appellant’s motion in arrest was by the court overruled. On the-14th day-of October, 1909, and during said October term of court, appellant was granted an appeal to this-court, and was given until the 2d day of the next regular term in which to file his bill of exceptions. The-bill of exceptions was filed within the time 'granted.

No bill of exceptions was filed at said June term of court, the term at which the motion for a new trial. was overruled, nor was leave granted to appellant by an order of record to file his bill of exceptions after the adjournment of said June term of court.

I. The Attorney-G-eneral insists that the record proper only can be reviewed by this court, for the reason that the defendant did not file his bill of exceptions during the term at which his motion for new trial was overruled, nor did he obtain leave to file it at a later term or in vacation. The record sustains this-view. The settled law of this State requires that ■exceptions taken during one term of court must be saved in a bill of exceptions filed at that term or subsequently within the time allowed by the .court for that purpose. [State v. Ware, 69 Mo. 332; State v. Taylor, 134 Mo. 109; State v. Larew, 191 Mo. 192; State v. Lawler, 220 Mo. 26.]

We are then confined to the record proper. The information is sufficient and in the form often approved by this court. [State v. Houx, 109 Mo. l. c. 658.] The arraignment, impaneling of the jury, the verdict and sentence of the court are all in due and regular form. No error appearing in the record, the judgment and sentence of the circuit court is affirmed and ordered to be carried into execution as the law directs.

Burgess and Eennish, JJconcur.


text:
    THE STATE v. CHARLES E. NORD, Appellant.
    Division Two,
    November 29, 1910.
    1. FALSE PRETENSE: Venue. Where defendant, by false and fraudulent representations, made in Missouri, obtained in Missouri checks drawn on a Kansas bank and cashed them in Missouri and obtained the money thereon here, the court should refuse an instruction telling the jury that the money was obtained in Kansas.
    2. EVIDENCE: No Exception. Assigned error in the admission or rejection of evidence cannot be considered on appeal unless an exception to the court's ruling thereon was saved.
    3. FALSE PRETENSE: Sufficient Evidence. Prosecutrix had sold a house in Kansas for $1100. Defendant represented to her that the Success Food Preserving Company was a corporation; that he was the manager thereof, and had its certificates of stock in his hands; that the stock was selling very fast, and he wanted her to invest while the. price was low; that the company was paying forty per cent on the investment, .and was one of- the best investments in which she could put her money, and in order to deceive her he put an advertisement in a newspaper, offering 10,000 shares of the par value of $100 each for sale at $50 per share, “money to be used in the business,” and promising fifty per cent on investment inside of a year, and declaring it a safe investment, and stating that particulars could be obtained if inquiry were addressed to the said company at a certain room in an office building. On the faith of these promises she executed to him two checks for $300 each and he cashed them and used the money for different purposes. The information charges him with having obtained the checks by false and fraudulent representations. As a matter of fact there was no such company, and no stock had ever been issued by such company, and defendant never had any of it for sale or under his control. Held, that the evidence abundantly supported a verdict of guilty.
    Appeal from Jackson Criminal Court. — No». Ralph 8. Latshaw, Judge.
    Affirmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) There are no exceptions saved to the action of the court in the admission or rejection of evidence over the objection of the appellant. Therefore, the objections to the evidence made by the appellant cannot be reviewed in this court. State v. Noland, 111 Mo. 492; State v. Barrington, 198 Mo. 76. (2) It is not necessary for the court to define in its instructions to the jury the-term “false pretense.” State v. McChesney, 16 Mo. App. 269. But the court did in this instruction define the term “false pretense” correctly. 3 Word's and Phrases, col. 1, p. 2663, citing in support of the text of this definition: State v. Yandimark, 35 Ark. 396; 2 Bishop’s Law, sec. 415; People v. Jordan, 66 Cal. 10; People v. Wasserbogle, 77 Cal. 173; State v. Knowlton, 11 Wash. 512; State v. Fooks, 65 la. 196; Commonwealth v. Henry, 22 Pa. (10 Harris) 253; •Jackson v. People, 126 111. 130; State v. Lynn, 3 Pennewile (Del.) 316; Taylor v. Commonwealth, 15 Ky. L. Rep. 49; State v. Haines, 23 S. C. 170; State v. Stewart, 9 N. D. 409. • (3) Instruction 1 was properly refused, as it would have told the jury that the place of obtaining the money was in Frankfort, Kansas. This instruction was properly refused as the checks were ■obtained in Jackson county, as well as the money thereon. The proof conclusively shows that the appellant committed the crime of false pretense in Jackson county, Missouri. Cheeks were given him at Emery, Bird, Thayer Company’s store. He cashed the checks, at the Traders’ National Bank, Kansas City, Missouri, and received the money therefor the day he cashed them’, and, again, immediately issued checks upon that bank for this same money. Therefore, Jackson county was the proper forum to take cognizance of the offense. 2 Wharton’s Criminal Law, secs. 1206,1207; 1 Chitty’s ■Crim. Law, sec. 192 et seq.; In re Carr, 28 Kas. 1.
   GANTT, P. J.

On the 9th day of March, Í909, the prosecuting attorney of Jackson county filed in the criminal court of Jackson county an information, duly verified, charging the defendant with obtaining by false and fraudulent representations and pretenses two certain checks, of the face value of three hundred dollars ■each, of and from Carrie Hamilton, said checks being ■signed by Mrs. Hamilton by the name of 0. A. Spaulding and drawn on the Citizens Bank of Frankfort, Kansas, in favor of defendant.

Said checks were collected by defendant and the money obtained through the Traders’ National Bank of Kansas City, Missouri. The fraudulent representations made by defendant to Mrs. Hamilton were that the Success Food Preserving Company was a corporation; that defendant had the stock of this company in his hands; that he was the full manager thereof; that the shares were selling very fast and he wanted her to invest while the shares were low; that they were paying forty per cent on the investment; that he wanted her to put her money into these shares; that it was one of the best investments in which she could put her money.

Defendant had ascertained that Mrs. Hamilton had just sold a house in Frankfort, Kansas, for $1100.

Believing these representations to be true and relying upon them, Mrs. Hamilton gave him the two checks and he obtained the money thereon in Kansas City, Missouri. As a matter of fact, it transpired there never was a corporation by the name of Success Food Preserving Company. No stock had ever been issued by such company and defendant never had any of it for sale or under 'his control. In’ order to deceive Mrs. Hamilton, defendant had published in the Kansas City Star the following advertisement: “For sale 10,000 shares in manufacturing company located in Kansas City, Missouri. We pay fifty per cent on investments inside year. Money to be used in the business. Fifty dollars per share, will double in sixty days, par value $100. This is a good safe investment. For full particulars call or address Success Food Preserving Company, 707 Bryant Building.” The defendant testified in his own behalf, admitted he obtained the $600 from Mrs. Hamilton, but denies he told her the company was incorporated, but did tell her the stock was worth one hundred dollars per share. Says she gave him the money. She knew what business he was in and that he needed the money to promote the business; that he paid the money out for different purposes. There was other testimony tending to show the fraudulent intent with which defendant induced Mrs. Hamilton to part with her money. Defendant obtáined the remainder of the $1100', after getting the $600.

Defendant is not represented in this court but we have read the whole record.

I. The information is sufficient both in form and substance. No good purpose can be subserved by reproducing it in full in this opinion. It measures up to the requirements of previous decisions of this court.

II. No objections and exceptions were saved to the instructions given by the court of its own motion on behalf of the State. On the part of the defendant, the court was requested to instruct the jury that the •money was obtained in Kansas and the court had no jurisdiction to try the cause. This was refused and defendant assigned its refusal as- ground for hew trial. This instruction was properly refused. The evidence clearly showed the checks and money were both obtained in Jackson county, Missouri. The second instruction was properly denied for the reason that the fraudulent representations were all of them existing facts, upon the faith and truth of which the prosecutrix parted with her money. The third instruction asked by defendant was fully covered by the instructions already given by the court, and numbered six and seven. The fourth instruction on behalf of defendant was unsupported by any testimony, and was properly refused.

III. No exceptions were saved to the action of the court in the admission or rejection of evidence and hence there is nothing to review in that respect.

IV. The complaint that the verdict was not supported by the testimony and-was against the weight of the evidence, is entirely without merit. By utterly false statements as to the existence of a corporation known as the Success Food Preserving Company; the value of its stock; that its shares were selling rapidly and were paying forty per cent upon the investment and by assuring her all this stock was under his control, he induced the prosecutrix to part with the proceeds of her lot in Kansas and converted the same to his own use and left her penniless. It would be hard to conceive of a more iniquitous scheme to obtain title to the estate of a confiding woman. Every representation purported -to state a fact then existing and every one was utterly false.. The jury could not have reached any Other verdict in view of the evidence and instruction of the court.

There is no error in the record and the judgment is affirmed and will be carried into execution.