State v. Fenn , 112 Mo. App. 531 ( 1905 )

BLAND, P. J.

The defendants were jointly charged and jointly tried and each convicted of verbal slander in the New Madrid Circuit Court. Timely motions for new trial and in arrest of judgment were filed which the court overruled and defendants appealed.

The slander alleged in the information is that defendants, in the presence of Louis Newbauer and W. W. Waters, spoke of James V. Conran, “the following false and slanderous words, imputing to him, the said James Y. Conran, the act of offense of forgery in the first degree, ‘He (meaning the said James y. Conran) forged that deed,’ meaning and referring to a certain deed, dated June 8, 1903, from the said M. H. Powell to said James V. Conran, purporting to convey her interest in certain real estate in New Madrid and Pemiscot counties, Missouri, which deed is recorded in New Madrid county, in the recorder’s office in book 36, page 527, and in the recorder’s office of Pemiscot county, in book 28, page 15, the said charge of crime and forgery, if true, not then and there being barred by the Statute of Limitations.”

For the State, the evidence tends to show that Mai H. Powell, now Mal H. Brant, executed and delivered to Conran the deed mentioned in the information. The deed recites a consideration of one thousand dollars.

Newbauer’s evidence is that defendant Fenn, in a conversation bad with bim in tbe presence of Mrs. Brant, on tbe second day of April, 1904, in tbe county of New Madrid, stated that Janies Y. Conran bad “Changed tbe consideration in a deed,” and that witness understood Fenn to refer to tbe deed described in tbe information; that Mrs. Brant was present, beard what Fenn said and assented to or affirmed tbe charge, that Conran bad “changed tbe consideration in a deed.”

Waters testified that be was introduced to Fenn by M'rs. Brant, on the streets of tbe city of New Madrid, on April 2, 1902, and that Fenn said: “I have been reading your paper recently and I admire tbe stand you have taken here in politics; in a short time you will have something more sensational to publish in your papers as I have examined tbe records of New Madrid county and I have obtained sufficient evidence to make some of your prominent citizens wear tbe stripes.” This evidence of Waters was erroneously admitted, over tbe objection of defendants.

To authorize a recovery in actions for verbal slander, it has been repeatedly held that it is necessary to prove tbe exact language alleged to have been used by tbe defendant, or enough thereof to constitute tbe charge, and it is not sufficient that tbe words proved are equivalent to tbe words charged though they contain tbe same charge but in different phraseology, if they are not substantially tbe same words. [Coe v. Griggs, 76 Mo. 619; Birch v. Benton, 26 Mo. 153; Christal v. Craig, 80 Mo. 367; Noeninger v. Vogt, 88 Mo. 589; State v. Marlier, 46 Mo. App. 233; Mix v. McCoy, 22 Mo. App. 488; Wood v. Hilbish, 23 Mo. App. 389; Butts v. Long, 94 Mo. App. 687, 68 S. W. 754.] Tbe same rule prevails in criminal prosecutions for verbal slander. [State v. Marlier, supra.]

Tbe words charged to have been spoken, “be (meaning James V. Conran) forged that deed,” were not proved by evidence that Fenn said James Y. Conran “bad changed the consideration in a deed.” None of the words, except the word “deed,” are the words charged in the information to have been spoken by Fenn as constituting the slander. The words proved do not, except by inference, charge the crime of forgery. The State utterly failed to prove the slanderous words laid in the information, and for this reason the court should have instructed the jury to return a verdict of not guilty, as requested by the defendants.

The judgment is reversed and defendants discharged.

All concur.