Boyce v. Wheeler

144 S.W. 119, 161 Mo. App. 504, 1912 Mo. App. LEXIS 90

• Court: Missouri Court of Appeals
• Decided: February 19, 1912
• Status: Published

Opinion

ELLISON, J.

Plaintiff’s petition was for libel in the first count and slander in the second. The judgment was for defendant on the first and it will not be further noticed. But on the second the judgment was for plaintiff and defendant appealed.

The charge in the second count is as follows:— That “defendant in the presence and hearing of plaintiff and other persons, to-wit: R. M. Wyatt and Daisy Dodson, falsely, wantonly, willfully and maliciously spoke of and concerning the plaintiff, Mrs. Joe Boyce, certain false, defamatory and slanderous words, to-wit: ‘This is my bowl and pitcher; you have taken them. You have taken ten ($10) dollars worth of dishes from me. You took my decorated set of china; if you will get them and pack them up- for me so I can take them home with me this evening, then I will not use the law on you, but if you don’t, I will use the law on you. You have my set of decorated china and you have to get it, its here ’ (meaning in the house of plaintiff), thereby intending to charge and impute and then and there falsely, wantonly, willfully and maliciously charging and imputing to plaintiff, Mrs. Joe Boyce, of being guilty of a criminal offense, whereby,” etc.

It seems that defendant left at plaintiff’s house a lot of china and glassware, packed in a barrel. Some of it was said to have been taken and defendant had a search warrant issued and delivered to the constable, which he took to plaintiff’s house to execute, defendant accompánying him. The constable went to the front and defendant to the back door, and while he was reading his warrant to plaintiff, defendant entered throug'h the back way, found and brought out to the front a washbowl and pitcher which she-claimed was her property, and there, in the presence of the constable and parties already named, she made the charge we have set out.

It appears that plaintiff had a sick son confined to his bed during defendant’s search of the house, and this was allowed to be shown, and that defendant frightened him. Nothing of this nature appeared in the second count of the petition and no special damage was claimed. It was therefore error to receive evidence of these matters without confining it to the count in which it was alleged.

The words above set out do not necessarily charge larceny, or other criminal offense. To charge one with having another’s property is by no means a charge of having it criminally. Nor does a charge of having taken another’s property obviously or necessarily charge theft or other violation of the criminal law. The additional threat to “use the law on you,” might well have meant the institution of a civil action, maybe replevin. So, therefore, the petition should, charge and the evidence should show that the words were understood by those who heard them to- impute to plaintiff the commission of a crime. [Lewis v. Humphries, 64 Mo. App. 466, 471; Unterberger v. Scharff, 51 Mo. App. 102; Walker v. Hoeffner, 54 Mo. App. 554.]

Instructions for plaintiff submitted to the jury to find whether certain words charged constituted “an offense against the laws of the state;” and whether they constituted a charge of “theft or embezzlement.” Those are questions not proper for the determination of a jury. [State v. Hardelein, 169 Mo. 579; White v. Reitz, 129 Mo. App. 307.]

No special damage was claimed in the second count and no evidence of fright of the son should be allowed under that count.

The judgment is reversed and the cause remanded.

All concur.