Miller v. Nuckolls , 77 Ark. 64 ( 1905 )

Riddick, J.,

(after stating the facts.) This is an appeal from a judgment in favor of Rhoda Nuckolls against J. T. Miller for $2,000 for slander and libel. Several grounds are urged in the brief of the appellant why the judgment should be reversed, and which we shall, now notice.

Fir-st, as to certain remarks made by the presiding judge during the progress of the trial, and as to his rulings in admitting evidence offered by the plaintiff and excluding evidence offered by the defendant, it is sufficient to say that these objections, are not sufficiently set forth in the motion for new trial, and must be treated as waived. No reference whatever is made to the remarks of the presiding judge in the motion for new trial, and the reference to the error in admitting and refusing evidence is as follows:

“The court erred in admitting testimony introduced by plaintiff over defendant’s objection, as shown by the stenographer’s transcript thereof.”

“The court erred in refusing, the testimony offered by defendant as shown by the stenographer’s transcript thereof.”

It will be seen that the particular ruling made by the court for which the new trial is asked is not shown by the motion. The attention of the court is not called to the particular error complained of, and the assignment is too indefinite. Edmonds v. State, 34 Ark. 721; Choctaw & M. Rd. Co. v. Goset, 70 Id. 427.

The first instruction given by the court does not, in our opinion, state the law correctly, for it tells the jury that they should find for the plaintiff if they find from the evidence that defendant did utter and publish concerning the plaintiff the words set out in the complaint as a basis of her action for slander, or if he used such words as amount to charging the plaintiff with fornication, or with having been guilty of fornication, or did utter or publish words of or concerning the plaintiff which in their common acceptation amount to such a charge.

Now, it will be noticed that the part of this instruction which we have quoted, in effect, told the jury to find for the plaintiff if the words used by defendant amounted to charging plaintiff with having been guilty of fornication, without regard to whether such words were substantially the same as those set out in the complaint or not. Under this instruction, it would have been the duty of the jury to find for plaintiff if the evidence had showed that defendant had said of the plaintiff — an unmarried woman— that she had permitted a man to have sexual intercourse with her, though no such words were set out in the complaint, for such words would in effect charge the plaintiff with fornication. But in an action for slander the plaintiff must prove that the defendant used substantially the same words as those alleged in the complaint. It is not sufficient to prove that the defendant made the same charge against the plaintiff in words substantially different from those alleged, even though of equivalent and similar import. 18 Am. & Eng. Enc. Law, 1078.

Nor do we think that it necessarily follows that the defect in this instruction was cured by the fact that the law was correctly stated in another instruction given at the request of the defendant, for the two instructions are to a certain extent contradictory. But a consideration of the evidence has convinced us that it does not show that the defendant uttered any words tending to charge plaintiff with having committed fornication except those set out in the complaint. There is evidence tending to show that the defendant did. utter about plaintiff words substantially the same as those set out in the complaint. For instance, the complaint alleged that he said, “There has been a secret burial of a child at Hopewell, and there is no doubt about its being Miss Rhoda Nuckolls,’ ” and the witness testified that he said, “There has been a secret burial of a child at Hopewell, and there is no doubt about its being Miss Rhoda Nuckolls’ child.” The addition of the word “child” to that stated in the complaint did not alter the meaning. Again the complaint alleged that defendant said, “Miss Rhoda Nuckolls has given birth to a child, and it was secretly buried at Hopewell,” and the evidence showed the same words except those referring to the burial. But the words not proved were not essential to make out the defamatory .charge. The substance of the charge was that defendant had said that “Miss Rhoda Nuckolls had given birth to a child,” and, these words being shown, the others were immaterial, for the words proved, of themselves, amount to a charge of fornication, when uttered about a single woman. 18 Am. & Eng. Enc. Law, 1070.

Now, as there was evidence tending to show that the defendant uttered the words set out in the complaint, and as the evidence does not show that he used any other language which could be taken as charging her with fornication, we do not think that the jury could have been, misled by^ the erroneous part of this instruction. They must have found that the defendant uttered the language set out in the complaint; otherwise, their finding should, under the instructions, have been for defendant. We are therefore of the opinion that no prejudice resulted from this instruction, though, theoretically considered, it is not accurate.

Counsel contend with much force that the writing on which the second cause of action was based was a privileged communication, and that it cannot be made the basis of an action of libel. It may be true that when a communication is made to an officer with the intention to aid him in the detection of crime, the courts will not compel the officer to disclose the name of the informer. It was so held in Worthington v. Scribner, 109 Mass. 487. When such communication is in a writing filed before the proper officer as the basis of a criminal prosecution, such as an affidavit showing the commission of a crime, then no action for libel can be based upon any pertinent matter therein contained. The remedy of the party charged, if he have any, is for malicious prosecution. The statement, being made in the 'course of a judicial proceeding, cannot be made the basis of an action for slander or libel, whether malicious or not. Shock v. McChesny, 2 Am. Dec. 415; Hastings v. Lark, 34 Am. Dec. 330; 18 Am. & Eng. Enc. Law, 1023, and cases cited. But in this case the libelous matter is not contained in any affidavit or paper filed in a judicial proceeding. It is not a statement of fact within the knowledge of the defendant-who made it, but is only a statement of certain rumors concerning the birth of a child, its concealment and burial, which he claims to have made to the justice of the pea.ce that the justice might order an investigation to ascertain the facts. It is the duty of every one to assist in the detection of crime; and if he knows facts that tend to show that a crime has been committed, it is not only proper, but it is his duty, to communicate them to the proper officer. But, while such statements are privileged, the weight of authority seems to show that they are not absolutely privileged, for charges of that kind should not be made recklessly and maliciously, but in good faith with an honest desire to promote justice. If made in good faith, they are privileged; but, on the other hand, if made maliciously, and with no probable cause to believe them to be true, they are not privileged. This point was directly decided in the old case of Bunton v. Worly, 4 Bibb (Ky.), 38, 7 Am. Dec. 735, where it was held that words spoken to a justice on application for a warrant for felony may be made the basis of an action for slander, when not made in good faith. See also, O’Donaghue v. McGovern, 23 Wend. 25; Howard v. Thompson, 21 Wend. 238, 34 Am. Dec. 238; Sands v. Robison, 51 Am. Dec. 132; Hancock v. Blackwell, 139 Mo. 440; Pierce v. Oard, 23 Neb. 828; Ogden on Libel & Slander, 220; Newell on Slander & Libel, 500; 18 Am. & Eng. Enc. Law, 1038. There are a few cases that seem to hold that communications of this kind to an officer are absolutely privileged. Johnson v. Evans, 2 Esp. 32; Vogel v. Guay, 110 U. S. 311. The first case mentioned above is a very old case. The last one was decided by the Supreme Court of the United States. But the decision in that case was based mainly on the ground that it*was a communication made to a State’s attorney, or public prosecutor of crimes, in order to ascertain whether certain facts •constituted a crime. The court held that the communication was as much privileged as if it had been made to an attorney hired by him. While these cases do seem to some extent to sustain the .contention of appellant, the weight of authority as before stated, ■seerlis to show that a communication of the kind under consideration here is privileged only when made in good faith, .but not when made recklessly, with the intention to gratify personal malice towards the plaintiff or his family. This is certainly true where, as in this case, the informant does not state facts, but mere rumors, which he might easily have ascertained to be untrue. It is doubtful if he was under any duty to voluntarily repeat mere rumors of that kind affecting the character of an unmarried woman, even to an officer of the law; and if he did so maliciously, an action would lie. The instruction given on this point was, we think, proper; and; when the instructions are considered as a whole in the light of the evidence, we find no reversible error.

Again, it is said that the judgment should be reversed on account of improper argument of counsel for plaintiff, who said to the jury in his closing argument: “Di\ Miller should thank God that the people of that community allowed him still to live.” On objection being made, the court quietly said to the attorney not to make improper remarks. Afterwards the attorney said: “A man who is guilty of such heinous crime ought not to be permitted to live in this county.” On objection being made, the court mildly said to the attorney that the remark was improper, to which counsel for plaintiff responded: “Your honor, I say, if he is guilty, he is not fit to live in this county, and I stand on that proposition.” The court overruled the objection to this remark. It will be noticed that the presiding judge sustained the objection to all the remarks of counsel except the last. It is true that his language does not appear to have been very emphatic, but the tone of the voice has much to do with a matter of that kind; and, though the record states that the court “quietly” cautioned the attorney not to make improper remarks, we are not able to say that this remonstrance did not clearly convey to the jury the idea that the argument was improper. If counsel desired to have the jury instructed to disregard the remarks, or if he wished a more emphatic reprimand, he should have asked for an instruction of that kind. That brings us to the last remark of counsel to which objection was made and overruled, in which he said that if defendant was guilty he was not fit to live in the county. This was only an expression of the opinion of counsel, and intended to convey to the jury his idea of the gravity of the charge against the defendant. Now, it is often the case that expressions of that kind are made in argument of counsel. The law does not confine counsel to a cold statement of the facts of the case. He must not misstate the facts, or undertake to supply the place of a witness by stating facts not in evidence. But, to quote the language of a recent case, he is not required to forego .the embellishments of oratory; for “stored away in the property room of the profession are moving pictures in infinite variety, from which every lawyer is expected to draw on all proper occasions.” State v. Burns, 119 Iowa, 671.

Now, counsel does not say in this last remark that a man guilty of that crime ought not to be permitted to live in that county. Such a statement, whether prejudicial or not, would be out of place, and exceedingly improper in a court of justice, as it might be taken as an indorsement of mob law. But in the last statement he simply said that he was not fit to live there. In other words, he maintained that a person who would slander an innocent girl was not a fit associate of the people there. This, as we have said before, was only an attempt to impress upon the jury the gravity of the offense committed against the plaintiff, and in our opinion furnishes no ground for reversal.

There are other errors complained of, but, after consideration thereof, we are of the opinion that no prejudicial error is shown that is raised by motion for new trial.

Judgment affirmed.