Dukes v. Clark

2 Blackf. 20, 1826 Ind. LEXIS 13

Opinion

Scott, J.

Clark filed his declaration in the Circuit Court, in which he charges Dukes with having spoken of Mm certain slanderous words, which, as he alleges, import a charge of incest. Plea, not guilty; verdict and judgment for the plaintiff..

On an inspection of the declaration, we find that the words, as laid, strongly imply a charge against Clark of an illicit intercourse with his sister-in-law. Such an intercourse, however, is not incestuous; and there are no words laid in the declaration, which imply a charge of the crime of incest In their strongest import, they imply no more than fornication or adultery. And as, at the time of speaking the words, a man was not liable to an indictment for fornication or adultery, we are clearly of opinion that the words, as laid, are not a sufficient-foundation for an action of slander. The judgment is, therefore, erroneous, and must be reversed (1).

Naylor, for the plaintiff.' Wick, for the defendant..

Per Curiam.

The judgment is reversed with costs.

Footnotes

(1)

Where an action was brought for words, in calling the plaintiff heretic and one. of the new learnings it was held clearly that it would not lie, being merely a spiritual matter; for if the defendant was disposed to justify and show in what respect the plaintiff was a heretic, the temporal Court could not judge of it; and it was not like where the Court had cognizance of the principal matter, as where a man was called traitor, or felon. Again, if he had called him adulterer, this being a spiritual matter, an action would not lie for it. But Fitzherbert said, that where things were of a mixed nature., as where a man was said to keep a bawdy-house, he might elect whether he would have his action here or in the spiritual Court. 27 Hen. 8.14.—4 Reeves’ Eng. Law, 385. The following is the language of Blacfcstone: In the year 1650, when the ruling powers found it for their interest to put on the semblance-df a very extraordinary strictness and purity of morals, npt only incest and wilful adultery were made capital crimes; but also the repeated act of keeping a brothel, pr committing fornication, were «pon a second conviction made felony without beneii-íróf clergy. But at the Restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigour. And.these offences have been ever since left to the feeble coercion of the spiritual Court, according to the rules of the canon law; a law which has treated the offence of incontinence,nay even adultery itself,with a great degree of tenderness, and lenity; owing, perhaps, to the constrained celibacy of its first compilers. The temporal Courts, therefore, take no cognizance of the crime of adultery, otherwise than as a private injury. 4 Bl. Comm. 65.

Many offences of private incontinence fall properly and exclusively under the juris-, diction of the ecclesiastical Court, and are appropriated to it. But where the incontK nence or lewdness is public, or accompanied \yith conspiracy, it is indictable.

Exposing a party’s person to the public view, is an offence contra bonos mores' and indictable. See 1 Sid. 168.—2 Camp. 89.—1 Keb. 620. And by the vagrant act, 5 Geo. 4, exposing a man’s person, with intent to insult a female, is an offence for which the offender may be treated as a rogue and vagabond; and so is the wilfully exposing an obscene print or indecent exhibition,—indeed this would be an indictable offence at common law. 2 Stra.789.—1 Barn. Rep. 29.—4 Burr. 2527, 2574. And by the same act, G. 4, every common prostitute wandering in public, and behaving in, a riotous and indecent manner, may be treated as an idle and disorderly person within the meaning of that act.

Publicly selling and buying a wife is clearly an indictable offence, 3 Burr. 1438? Procuring or endeavouring to procure the seduction of a girl seems indictable. 3 Stra., Tri. 519. So is endeavouring to lead a girl into prostitution. 3 Burr. 1438.—4 Chitt., Bl. 65, note (25).

Vide Shields v. Cunningham, Vol. 1. of these Rep. 86, and note (3).—Henson v. Veatch, Idem, 371, note (1).

The living in open and notorious adultery or fornication, or being guilty of open and, notorious lewd ness or of'any grossly scandalous and public indecency, is now punishable in Indiana by statute. R. C. 1831, p. 192. And words charging & female with fornication, &c. or charging any person with incest, sodomy, &c. are expressly maclaactionable by statute. R. C. 1831, p. 407.