Page images
PDF
EPUB

stand. As we have seen, the complaint as to him proceeds upon the theory that the appellee was entitled to a judgment against him for the amount due from him to the trust fund. Assuming, without deeiding, that the appellee was entitled to this relief, there is nothing in the verdict | or in any finding of the court fixing that amount. Without such a verdict or finding, there was nothing upon which to base a judgment. The liability of the appellants, as disclosed by the complaint, as we have said, is several, and not joint. To authorize a judgment against John Haxton, there should have been a separate finding as to the amount due from him to the trust. Judgment affirmed as to the appellant Alexander C. Haxton, and reversed as to appellant John Haxton, with directions to grant a new trial as to him.

[blocks in formation]

TIONS JUSTIFICATION-EMBezzlement. 1. An objection to an affidavit offered in evidence is insufficient which merely states that it is inadmissible.

2. In actions for slander, evidence of defendant's pecuniary condition is admissible.

3. Though it is the rule that, in an action for slander, defendant must prove his answer of justification beyond a reasonable doubt, yet it was prejudicial error to so emphatically iterate and reiterate that rule in charging the jury as to mislead them by creating the impression that the rule was to be acted on to the exclusion of all other rules. OLDS and MCBRIDE, JJ., dissenting to so much of the opinion as holds that justification must be proven beyond a reasonable doubt.

4. In an action for slander, where the plea of justification charged plaintiff with embezzling the funds of a bank of which be was cashier, an instruction that there was no embezzlement unless, at the time he appropriated the funds, it was his intent to deprive the bank of such funds, was misleading, since Rev. St. 1944, provides that one who appropriates to his own use money in his custody, belonging to another, is guilty of embezzlement, and does not expressly make such intent an element of the offense.

Appeal from circuit court, Greene county.

Action by Samuel L. Wallace against Juman H. Fowler for slander. From a judgment on a verdict for plaintiff, defendant appeals. Reversed.

Cavens & Cavens, Jorden & Mathews, W. R. Harrison, and 1. H. Fowler, for appellant. Beem & Hickam, for appellee.

ELLIOTT, C. J. This action was prosetuted by the appellee against the appellant to recover damages for slanderous words uttered and published by the latter of the former. The questions requiring consideration arise on the ruling denying a new trial. One of the questions argued by counsel relates to the introduction of an affidavit made by the appellant for a change of venue. The only objection stated to the introduction of the affidavit was that "it is inadmissible." This statement was insufficient. It is settled beyond controversy that specific objections to evidence must be stated, and the objections, as stated, must be brought into the rec

ord on appeal. Railway Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234, and cases cited; Bingham v. Walk, 128 Ind. 173, 27 N. E. Rep. 483.

In actions for slander, evidence of the defendant's pecuniary condition is competent.

are

The court instructed the jury that the appellant must prove his answer of justi|fication beyond a reasonable doubt. It is with reluctance and regret that we yield to the decisions upon this point, and sustain the instruction. It has been so often and so emphatically asserted that the question is so firmly settled that the rule can only be changed by legislation that we feel bound to adhere to the doctrine of our cases. We are satisfied that the rule grew out of a misconception of principle, and we should be glad to es. cape from it, and, if we were not compelled by duty, we should decline to give it our adherence. The decisions numerous, and their assertions unqualified and strong. Hutts v. Hutts, 62 Ind. 214; Wilson v. Barnett, 45 Ind. 163; Tucker v. Call, 45 Ind. 31; Lanter v. MeEwen, 8 Blackf. 495; Wonderly v. Nokes, Id. 589; Landis v. Shanklin, 1 Ind. 92; Gants v. Vinard, Id. 476; Shoulty v. Miller, Id. 544; Swails v. Butcher, 2 Ind. 84; Tull v. David, 27 Ind. 377. In the latest cases touching the question the court recognizes the existence of the rule in libel and slander cases, speaks of the fruitless attempt to secure its overthrow, and declares that it cannot be extended to other classes of cases than actions for libel or slander. Hale v. Matthews, 118 Ind. 531, 21 N. E. Rep. 43. The later decisions upon the subject recognize, as we think, the rule as applying to slander cases and libel, but deny its application to other cases. It would certainly do much less evil to leave a change to be made by legislation, inasmuch as such a change, not being retroactive, would not affect pending cases and permit successful appeals or bills of review, while a change by judicial decision would open the way to litigation by appeal and by proceedings for review in cases wherein judgments have been rendered, but against which the statute limits the time for appealing or filing bills of review. feel, at all events, that it is our duty to give the rule stare decisis effect, much as we may favor the unification of the rules of evidence.

We

The court repeated in seven or more of the instructions the statement that the appellant must prove the material facts in his answers of justification beyond a reasonable doubt. In some of the in structions very strong and emphatic language was employed. Thus in one of the instructions it is said: "To sustain the plea of justification relied upon by the appellant in this case, in so far as the same alleges the truth of the charge, it is necessary that all of the material allega. tions of the same shall be established to the satisfaction of the jury beyond a reasonable doubt; and for the purpose of determining that question you may properly regard the plaintiff as placed upon trial under an indictment by the

grand jury of the county upon the charge of criminal embezzlement." In another instruction it is said: "The plaintiff occupics the same position, so far as the degree of proof is concerned, under the answers of justification upon the grounds of the truth of the charge, as if he were on trial upon an indictment for the embezzlement of the money of the bank for whom he was acting as cashier, and I therefore instruct you as a matter of law that, where a plea of justification in an action for slander charges the plaintiff with the crime of embezzlement, the defendant must prove the guilt of the plaintiff beyond a reasonable doubt." We all agree that these instructions went further than the law warrants in asserting that the position occupied by the plaintiff was the same as if he had been on trial upon an indictment. At all events, we are clear that the iteration and reiteration of the statement so emphatically made, that the plea of justification must be proved beyond a reasonable doubt, gave the statement undue prominence, to the prejudice of the appellant. The repetition of a statement so emphatically and strongly made is very likely to mislead a jury by creating the impression that the judge intends that the statement made by him shall control and be acted upon to the exclusion of other rules. In Poweil v. Messer, 18 Tex. 401, it was said: "Where the judge has embodied in his charge rules of law applicable to the case, in such form as to give to each no more than its due relative prominence, to repeat portions of the charge in the form of distinct and independent propositions may not unfrequently have the effect to give to the principles thus enunciated undue prominence and importance in the minds of the jury, and thus mislead them in the application of the law to the evidence. It is a manifest duty of the court to guard against such a consequence." It is probably true that there are cases where the rule stated should not apply, but the case before us is a close one upon the evidence, and we are unable to escape the conclusion that the trial court, by so often repeating the doctrine so broadly and strongly stated, imposed a greater burden upon the appellant than the law requires him to bear.

One of the instructions given by the court reads thus: "In determining the question as to whether or not the crime of embezzlement has been committed, you should bear in mind that there is a wide difference between a felonious taking, purloining, secreting, or appropriating the property or money of the bank, and the mere negligent or careless loaning or use of the same in the course of his [plaintiff's duties as cashier. In the case of a criminal taking or permitting to be taken by another there is existing in the minds of the criminal the felonious intent to deprive the owner of the property without compensation. In the other case, while he might incur a civil liability to the bank through his lack of faithfulness and strict attention to his duty as such cashier, there is yet lacking that felonious intent to deprive the owner of the property necessary

[ocr errors]

to the commission of the crime of embezzlement." In another instruction the court declared that the defendant must prove, among other things, this fact: "That Wallace, while acting as such cashier, did unlawfully, feloniously, and for the wrongful purpose of depriving said bank of the same, take, purloin, secrete, or in some way appropriate to his own use, or to the use of others, or with such felonious knowledge permit some other person to take possession of, secrete, or in some way appropriate to his or her own use, or to the use of another, the money of the bank, controlled by him as cashier, for the purpose of depriving the bank of the same. These instructions assert that the purpose or intent of the cashier to deprive the bank of its money must have existed at the time of appropriating, purloining, or secreting the money. They impliedly assume that there may be a wrongful appropriation of the money of the bank, and yet be no embezzlement, unless at the time of appropriating, purloining, or secreting the money the cashier intended to deprive the bank of it without compensation. The instructions are clearly misleading in asserting, as they do, that money may be purloined or secreted by a bank cashier, and there be no crime unless the intent to eventually deprive the owner of its money rests in the mind of the purloiner. We suppose it clear that, where a cashier purloins and secretes the money of the bank, there is guilt, no matter what may be his intention as to ultimately depriving the bank of the property. He cannot wrongfully purloin and secrete money without becoming prima facie at least an embezzler. But we think that the instructions would have been erroneous if the words “purloin” and "secrete" had not been employed. regard the instructions as erroneous, because they convey the meaning that, although there may be a wrongful appropriation or conversion of the money of a bank by its cashier, there is no crime un. less there was an intention to deprive the owner of the money wrongfully appropriated or converted.

We

The wrongful or negligent violation of a rule of a bank by a cashier in lending money to himself or to others does not necessarily make him an embezzler, nor does the fact that he may not be able to account for all money that may come into his hands make him guilty, per se, of embezzlement. There must, in order to constitute the crime, be, either at the time of receiving the money or at some subsequent time, some element of fraud or evil intention. If there is no fraudulent purpose or evil intention there is no crime. But in going thus far we go to the utmost verge of the doctrine asserted by the cases most favorable to the appellee. If there is fraud in taking, appropriating, or using the money, there is a criminal act, and so there is where there is fraud in failing to account for the money taken or used by the cashier. The rule, as we have stated it, does not go far enough to rescue the instructions from condemnation, for embez zlement may exist without any intention existing in the mind of a bank cashier at the time he takes, obtains, or uses money

of bis employer to deprive the employer of it without compensation. A cashier who takes the money of the bank to wager on a game of chance is guilty of embezzlement, although at the time he may intend to replace it, and may believe that he is able to do so. So, too, a bank cashier who, in willful violation of the rules of the bank, takes its money, and uses it as his own, or uses it in conjunction with others in speculating in grain, may be guilty of a crime, although he may intend to restore the money, and believe that he can do so. If there is a willful and known wrongful taking, use, or appropriation of the employer's money by an agent, the criminality of the act is not removed by the intention to make restoration. The intention to restore or replace does not make a wrongful and intentional purloining, secretion, or appropriation of the money of another any the less an embezzlement, nor is it essential to the existence of the offense that at the time the wrongful act is perpetrated there should be an intention to deprive the owner of his property. Our s'atute does not expressly make a felonious intent to deprive the owner of his property an element of the offense. It provides that any person in the employ of another who shall, while in such employment, take, purloin, or secrete, or in any way appropriate to his or her own use, or to the use of others, any money, coin, bills, choses in action, or other property or article of value belonging to or deposited with or held by such person or corporation," shall be deemed guilty of embezzlement. Rev. St. § 1944. If we adhered to the words of the statute, we should be compelled to hold that the taking or appropriation of itself constitutes the crime, for there is no reference to intention or design. But we think that the statute should not be so strictly construed against one accused of crime. We hold that there must be some element of moral wrong, or there is no crime, but we cannot hold that there must be both a wrong and a felonious intention at the time of taking or appropriating the employer's money to deprive him of it. It has been held under statutes less comprehensive than ours that the felonious intent need not exist at the time the money is taken. If formed at any time it gives a criminal character to the act. State v. Findley, 101 Mo. 217, 14 S. W. Rep. 185.

But, waiving the objection that the instructions unduly limit the time of forming the evil intention, we will refer to the authorities upon the subject of the intention to make restoration. The authorities are well agreed upon the proposition that the intention to restore, repay, or replace money or property wrongfully and unlawfully appropriated does not take from the act its criminal character. In the case of Com. v. Tenney, 97 Mass. 50-59, it was said: "Intention to restore the bonds, and the agreement of the party who received them not to sell or dispose of them, cannot do away with the crim. inal nature of the transaction. A guilty intent is necessarily inferred from the commission of such an act, the inevitable effect of which is to deprive the true owner of

[ocr errors][merged small][merged small]

his property, and appropriate it to the defendant's own use. Perhaps, in the majority of cases, the party who violates the trust in such a manner does not expect that ultimate loss shall fall upon the person whose property he misuses. But no hope or expectation of replacing the funds abstracted can be admitted as an excuse before the law. The forger who means to take up the forged paper, the thief who contemplates making eventual restitution, and the man who embezzles money or bonds with the design of restoring them, all fall under like condemnation in courts of justice, and wherever the rules of sound morality are respected." It is true that in the case from which we have quoted the act constituting the embezzlement was one clearly indicating an evil intention; but the rule stated is nevertheless a general one, and is asserted in other cases. In Com. v. Tuckerman, 10 Gray, 173-204, the question is fully examined, and the court, speaking of an intent to replace or restore money, said: "The result cannot be affected by the consideration-if it be admitted to be well foundedthat the defendant at the time of taking and converting the money to his own use intended to restore it to the owners before his appropriation of it should become known to them, and believed that he should be able to do so, and had in his possession property to the full amount of the property which was taken." The general doctrine was thus declared in State v. Leicham, 41 Wis. 565-580: "Neither does the fact (if it be a fact) that the defendant believed, when he converted the seeders to his own use, that he would be able to pay the owners for them when required to account for them, and intended to do so, remove from the act of conversion its fraudulent and criminal character. The fraud and crime inhere in the act, and were not eliminated therefrom by any mere mental process, however amiable or vir tuous it may have been." Some of the cases go much further than those to which we have referred. State v. Pratt, (Mo.) 11 S. W. Rep. 977; Hemingway v. State, (Miss.) 8 South. Rep. 317; Com. v. Pratt, 137 Mass. 98. It is probably true that the instructions upon this point, given at the request of the appellant, contradicted in some particulars those we have considered, but, granting that there is such a contradiction, nevertheless the error in giving those first named is not cured. is an elementary principle of procedure that the court cannot, by contradictory instructions, leave to the jury the duty of determining which of the two lines of instructions shall be followed, or what rule of law shall control the case. The law must come from the court, and be so declared that the jury can follow it without confusion. The case is very far from being one in which we can say that the verdict is so clearly right upon the evidence that errors in instructions may be disregarded. Judgment reversed.

It

OLDS, J. I concur in the opinion of the majority of the court in all except the sus taining of the instruction given by the court, that the appellant must prove his

with the intent to defraud the insurance company, and in that case it was held that such answer was only required to be proven by a preponderance of the evidence. In the case of Hale v. Matthews, 118 Ind. 527, 21 N. E. Rep. 43, the complaint averred that on a certain date appellee. Matthews, was the owner of a large quantity of lumber of the value of $925; that appellant, Hale, on said date did then and there unlawfully, purposely, and willfully set fire to, burn, and destroy all of said lumber, to the damage of Matthews in the sum of $925. The court charged the jury that the appellee, Matthews, was entitled to recover if he proved the averments of his complaint by a preponderance of the evidence, and the appellant contended that the appellee was not entitled to recover unless the averments of the complaint were proven beyond reasonable doubt. The complaint charged a felony, and this court held that it was only necessary to prove its allegation by a preponderance of the evidence. The rule, if applicable in civil cases, applies to all pleadings alleging the commission of a felony, but this court has divided the rule, and ap plies it in one class of cases to which it was applied in England, and refuses to apply it in another. If the rule is now applicable in this state in cases of libel and slander, then one may bring suit and charge another with the crime of arson in buraing his property, and recover its value if he establish the averments of his complaint by a preponderance of the evidence; and if the defendant sue him for slander for speaking the words charging him with arson, to avoid damages, he must aver and prove beyond a reasonable doubt that he committed arson in burn

answer of justification beyond a reasonable doubt, and, adhering to the former decisions of this court holding such a rule, I agree with the statement in the opinion "that the rule grew out of a misconcep tion of principle," but I cannot give my assent to the fact that it is so firmly fixed as the law of this state that it can only be changed by legislation. If this rule had been established and uniformly adhered to by an unbroken line of decisions in this state, being erroneous and contrary to an almost unbroken and unanimous line of decisions of the other states of the Union, it would seem to me that it is the duty of this court to correct the error, and adopt the proper rule, since it affects only a rule of evidence applicable to cases triable in the future, and affects no property rights. But I maintain that the decisions of this court, holding that in actions for slander the defendant is required to prove his answer of justification beyond a reasonable doubt, are contrary to the law of this state as declared by numerous decisions of this court, and that the decisions holding such a rule have, in effect, been overruled by other decisions holding the contrary. It is the well-settled law of this state that in all civil actions a preponderance of evidence is all that is necessary to establish the affirmative of an issue. An action of slander is a civil ac tion, and to hold that an answer of justification in such a case must be proven by evidence beyond a reasonable doubt is in conflict with and contrary to rules of evidence governing in the trial of all other civil actions, and, if such a conflict exists, then it is the duty of this court to adhere to one general rule of evidence in all civil actions of like character, and to overrule any decisions which may be in conflicting the property for which be has in anwith such general rule. The rule requiring a plea of justification to be proven beyond a reasonable doubt was adopted in England upon the trial of a plea of justification of a charge which imputed a felony, for the reason that, if the defendant proved the plea, the plaintiff was subjected to be put upon trial for the felony proved without the intervention of a grand jury; the verdict in such a case being equivalent to an indictment of the plaintiff. There never was any reason for the application of the rule in this state or in this country, and under the decisions as they now exist in this state, as asserted in the majority opinions, the rule is adopted in one class of cases only, that of libel and slander,-while as to all other classes of civil cases where the truth of a charge of felony is alleged the rule is not applied, and the plea is supported by a mere preponderance of evidence; while, if the truth of slanderous words spoken is pleaded, the plea must be supported by proof beyond reasonable doubt. In the case of Insurance Co. v. Jachnichen, 110 Ind. 59, 10 N. E. Rep. 636, the appellee brought suit against the appellant upon a policy of insurance for the value of a barn and contents covered by the policy, and which was alleged to have been destroyed by a fire of unknown origin. The company answered that the assured had himself purposely burned the property,

other suit recovered the value upon a preponderance of the evidence. The decisions are so contradictory, and, in my opinion, enunciate such an anomalous and absurd rule, if they are both to be regarded as the law, that it seems to me that, in justice to this court and to litigants, one rule or the other should be abandoned and over. ruled, if such has not already been the effect of our decisions.

In the case of Insurance Co. v. Jachnichen, supra, the court said: "Leaving the subject, so far as it relates to cases of slander and libel, for further examination when such a case arises, it is only proper to add here that the current of modern authority tends strongly in the direction indicated by the supreme court of Maine in Ellis v. Buzzell, inʻra, which decision of the supreme court of Maine limited the rule requiring proof beyond reasonable doubt to criminal cases, and held that only a preponderance was required in any civil case. I regard the decision of the court in Insurance Co. v. Jachnichen, supra, as abrogating the rule, so far as all civil cases are concerned, except libel and slander, and in effect announcing that it would be abrogated in that class of cases when the question came before it for decision. In the case of Reynolds v. State, 115 Ind. 421, 17 N. E. Rep. 909, the court, in a prosecution for bastardy, wherein a defendant may be imprisoned if he fails to

pay or replevy the judgment, held that a preponderance of the evidence is all that is necessary to establish the case against the defendant; and in that case the court says: "If any other authority were necessary, it will be found in the late case of Insurance Co. v. Jachnichen, 110 Ind. 59, 10 N. E. Rep. 636, where, after a thorough examination of the whole question, and a review of numerous cases and authorities, it was held that in all civil actions a preponderance of the evidence only is necessary to establish the affirmative of an issue, whatever the nature of that issue may be." This enunciated the correct rule, which is in accordance with the almost unanimous current of modern authority, and holds that only a preponderance of the evidence is necessary to establish the affirmative of any issue joined in a civil case. These decisions-the one in 110 Ind. 59, 10 N. E. Rep. 636, and 115 Ind. 421, 17 N. E. Rep. 909-are later utterances of this court than any holding the rule adhered to by the majority of the court, and are directly in opposition to the others, and in fact overruled them; and the decisions holding, as in the case of Hale v. Matthews, supra, that the rule is not applicable in cases other than libel and slander, are also in direct conflict with those holding that the rule is applicable in cases of libel and slander, for the rule, as a rule, applies to pleadings alleging the truth of a felony. The following authorities, among others, are in harmony with the views I have expressed: Matthews . Huntley, 9 N. H. 146; Woddrop v. Thacher, (Pa. Sup.) 11 Atl. Rep. 621; Ellis v. Buzzell, 60 Me. 209; Elliott v. Van Buren, 33 Mich. 49; Blaeser v. Insurance Co, 37 Wis. 31; Kincade v. Bradshaw, 3 Hawks, 63; Marshall v. Insurance Co., 43 Mo. 586; Jones v. Greaves, 26 Ohio St. 2; Riley v. Norton, 65 Iowa, 306, 21 N. W. Rep. 649; Schmidt v. Insurance Co., 1 Gray, 529; Gordon v. Parmelee, 15 Gray, 416; Rothchild v. Insurance Co., 62 Mo. 356; Insurance Co. v. Wilson, 7 Wis. 169; Scott v. Insurance Co., 1 Dill. 105; Vaughton v. Railroad Co., L. R. 9 Exch. 93; note to 2 Greenl. Ev. § 408; 2 Whart. Ev. § 1246; Edwards v. George Knapp & Co., 97 Mo. 434, 10 S. W. Rep. 54; Peoples v. Evening News, 51 Mich. 17, 16 N. W. Rep. 185, 691; People v. Briggs, 114 N. Y. 64, 20 N. E. Rep. 820; Bell v. McGinness, 40 Ohio St. 204; Davis v. Railroad Co., (Sup.) 10 N. Y. Supp. 334. For the reasons given, I am unable to concur in so much of the opinion as holds that an answer in justification must be proven beyond a reasonable doubt to be available as a defense in an action for libel or slander. MCBRIDE, J. I concur in the dissenting opinion.

ADAMS V. OHIO FALLS CAR CO. (Supreme Court of Indiana. April 26, 1892.) CITIES CONTROL OF WHARF-GRANT TO PRIVATE COMPANY-NUISANCE-INJUNCTION.

1. The exclusive power granted the common council by Rev. St. 1881, § 3161, over the streets and alleys of a city, does not extend to authorizing the construction for private purposes of a log way or elevated platform upon land used in connection with a wharf, so as to obstruct the

use of the said wharf, but such power is to be exercised only for the benefit of the general public.

2. A complaint which charges an injury to the use and enjoyment of plaintiff's dwelling, and the depreciation in value consequent upon the dust, smoke, and offensive odors resulting from the construction and operation of such a structure, shows an injury distinct from that of the general public, entitling the plaintiff to relief by injunction.

Appeal from circuit court, Clark county; C. P. FERGUSON, Judge.

Suit by John Adams for an injunction against the Ohio Falls Car Company. There was a demurrer to the complaint, which was sustained, and plaintiff appeals. Reversed.

J. H. & E. B. Stotsenberg and James K. Marsh, for appellant. M. Z. Stannard, for appellee.

MILLER, J. Appellant brought this ac tion to enjoin the appellee from making use of a portion of the public wharf in the city of Jeffersonville. A demurrer was sustained to his complaint, and this appeal is from the final judgment rendered against him ou demurrer. The complaint shows that the plaintiff is a citizen of Jeffersonville, and the owner of a two-story frame dwelling honse occupied as a family residence, and worth $10,000; that directly in front of his house is a street 60 feet in width, and between that and the Ohio river is the public wharf, or levee of the city; that the defendant is a corporation having no residence in the city or special interest in or ownership of said wharf and no corporate power to condemn or take either private or public property for use in its business; that on the 8th day of April, 1890, the defendant, without the consent of the plaintiff, wrongfully entered upon the strip of land used for wharf purposes, directly in front of the plaintiff's residence, and has begun the construction of a log way or elevated platform of heavy timbers, with posts and supports; that a portion of the log way is to be 10 feet in height, gradually sloping towards the river, and will be at least 100 feet in length; that it is the intention of the defendant to continue the construction of the log way until it reaches the river, and when so permanently laid and constructed it intends to place thereon, use, and operate a steam engine, with convenient apparatus to drag large and heavy logs along said platform from the river to the top of said wharf, close to plaintiff's residence; that the log way and its accompanying timbers and accessions will be so large and project so high above the surface of the wharf that it will be impossible for the plaintiff or his family, or the general public, to cross over the log way and raised platform to use the wharf either for wharf or other lawful purposes; that this wrongful and unlawful attempt to permanently obstruct this portion of the wharf is, as plaintiff believes and charges, without the consent or license of the mayor and common council of the city; that if said log way and platform are erected, and a steam engine placed thereon and used for the purpose of pulling logs as above described, be

« PreviousContinue »