State v. Simpson , 136 Mo. App. 664 ( 1909 )

ELLISON, J.t

Defendant was tried and convicted on a charge of criminal slander prohibited by section 2258, Revised Statutes 1899. The charge was by information filed in the circuit court.

The charge was that defendant said to the prosecuting witness that “I have been told that you caught a bad disease from her,” meaning a certain named woman.

The statute (section 2262, Revised Statutes 1899) is that “In all prosecutions for libel or slander, the truth thereof may be given in evidence to the jury, and shall constitute a complete defense; and the jury, under the direction of the court, shall determine the law and the fact.”

The court instructed the jury that the words quoted above constituted a charge of fornication and that if they believed they were spoken by defendant they should convict him. This was error. The foregoing statute leaves to the jury the question whether a certain charge is slander and whether they will convict. [State v. Armstrong, 106 Mo. 395; Arnold v. Jewett, 125 Mo. 241; Heller v. Pulitzer Pub. Co., 153 Mo. 205; State v. Powell, 66 Mo. App. 598.] We considered the subject in Sands v. Marquardt, 113 Mo. App. 490, and Grimes v. Thorp, 113 Mo. App. 652. In the latter case we stated that in criminal prosecutions for either libel or slander the jury determine the law and the fact; and that they could not be peremptorily directed to find a verdict of guilty if certain evidence was believed. The court should instruct in an advisory, but not peremptory way, that certain words would, in the opinion of the court, sustain a verdict of guilty if found by the jury at the same time informing them that the court’s opinion was merely advisory and not binding on them, and that they were the sole judges of whether the words constituted libel or slander and as to whether the accused should be found guilty. It is said in State v. Armstrong, supra, “That while the judge may assist and inform them what the law is, and it is his duty to do so, still they are, by virtue of organic law, the final judges in a prosecution for criminal libel.”

The information in this case is on the affidavit of the woman charged to have been slandered. The wording of her affidavit is that “the facts in the above and foregoing information are true according to her best knowledge, information and belief.”

In State v. Bennett, 102 Mo. 356, affirmed without comment in State v. Armstrong, supra, it was ruled that an affidavit by a private person on “best knowledge and belief” was sufficient. As will be seen by the opinion in .the Bennett case, it was not without a struggle that the court came to the conclusion it did. It was determined that the word “belief” did not qualify the other word “knowledge.” While we readily concede the soundness of the position there taken, yet it did not involve an affidavit like the one before us. In that case knowledge and belief were reasoned out to amount to-the same thing as applied to the affidavit. But in this case we are asked to go a step further and approve of a pleading based, partly at least, upon information. Information implies lack of knowledge. One may say “1 believe” a thing because he knows it. When one says he is informed of a thing, he knows he is informed, of it, but he does not know it exists, he does not know his information is true, he impliedly affirms that he does not know. So in State v. Hayward, 83 Mo. 299, an affidavit “to the best of his information and belief” was held to be bad. That ruling is approved in the Bennett case. We therefore conclude that the affidavit in this case does not fall within the limit of the Bennett case and is more nearly controlled by the Hayward case and should be declared not sufficient ground upon which to base an information by the prosecuting attorney. While we are now passing upon the affidavit as it appears on its face, yet it may be well to state that matters developed after the motion to quash had been overruled showed clearly why the word “information” was put in the affidavit. It appeared in evidence that the affiant knew nothing of the matter whatever of her own knowledge, and merely made the affidavit on the word of another. Thus appears the wisdom of the ruling in the Hayward case.

We will state in this connection that the statute as applied to the matters here considered is the same as it was when the Hayward and Bennett cases were decided and that the court in deciding the Hayward case was aware of the statute prescribing a form of affidavit on “information and belief.” That statute is now known as sections 2478 and 2479, Revised Statutes 1899. Those sections; however, relate to the institution of a prosecution by an affidavit apart from the information. Such affidavit is not a verification of the information, nor an affidavit filed with it, as contemplated by section 2477, for it is a paper made and filed before the information comes into existence. It is the foundation for the information.

Counsel for the State insist that the record here is not sufficient to show a bill of exceptions, or that exceptions were taken. We have examined the transcript, including the certificate of the clerk to the different parts of the record, including a bill of exceptions, and we find it sufficient.

The judgment is reversed and the cause remanded.

All concur.