Samuel O. Elder, Respondent, v. General J. Oliver, Appellant

St. Louis Court of Appeals1888-04-24

30 Mo. App. 575

Summary · law.co

Holding. The judgment for the plaintiff is affirmed. The trial court did not err in allocating opening and closing arguments to the plaintiff, in instructing the jury that the defendant must prove the theft allegations beyond a reasonable doubt, or in modifying the jury instruction regarding possession of stolen property.

Samuel O. Elder sued General J. Oliver for slander, claiming Oliver falsely accused him of committing larceny. Oliver admitted speaking the words but defended himself by arguing they were true, citing several prior theft incidents allegedly committed by Elder. After two mistrials, a jury returned a verdict favoring Elder and awarded him seventy-five dollars in damages. Oliver appealed on three grounds.

Oliver challenged the trial judge's decision to give the plaintiff the right to open and close arguments, but the court found no error because state law grants trial judges broad discretion over this procedural matter and Oliver showed no injury from the ruling. The court also noted that in England and most other American jurisdictions, the plaintiff customarily has this right in slander cases. Oliver also objected to an instruction requiring him to prove the theft allegations to the criminal standard of beyond a reasonable doubt, but the appellate court upheld this instruction based on established precedent. Finally, Oliver contested the addition of a concluding sentence to a jury instruction about possession of stolen property, but the court found the added language appropriate and presumed the evidence supported its inclusion.

The appellate court affirmed the judgment entirely, finding no reversible error in any of the trial court's rulings.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the trial court abused its discretion in allocating opening and closing arguments
What standard of proof applies when a defendant in a slander case pleads justification based on truth
Whether a jury instruction on presumptive evidence from possession of recently stolen property required modification

Procedural posture

The defendant appealed from a judgment entered on a jury verdict in favor of the plaintiff in a slander action after two prior mistrials.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Thompson, J.,

delivered the opinion of the court.

This was an action for slander, in uttering words which imputed to the plaintiff the commission of the crime of larceny. The defendant admitted the uttering of the words, and justified by alleging their truth, and by alleging several distinct acts of larceny committed by the plaintiff prior to the uttering of, the words. After two mistrials there was a verdict and judgment for the plaintiff in the sum of seventy-five dollars, from which the defendant prosecutes this appeal. The errors assigned are :

I. Refusing the opening and closing of the argument to the defendant. This error is not well assigned. Contrary to the rule which obtains in most jurisdictions, the rule in this state is, that “the right to open and close generally rests very much in the sound discretion of the court trying the cause, and an error committed in that regard will not be sufficient to reverse a case, unless it is plainly made to appear that injury has resulted therefrom.” Harvey v. Sullens, 56 Mo. 373; Reichard v. Ins. Co., 31 Mo. 518; Farrell v. Brennan, 32 Mo. 333. There is nothing in this record tending to show that any injury resulted to the defendant from the ruling of the court in awarding the opening and closing to the plaintiff.

It may not be improper to add, that in England and in most American jurisdictions where the right to open and close is regarded of such a substantial nature that the denial of it is assignable for error, the plaintiff has this right in every action for slander or libel. Vifquain v. Finch, 15 Neb. 505; Burckhalter v. Coward, 16 S. C. 435, 443; Fry v. Bennett, 3 Bosw. (N. Y.) 200, 232; s. c., affirmed, 28 N. Y. 324. In Cooper v. Wakley, Mood. & M. 248, Lord Tenterden ruled the contrary. But this decision has been overruled in England, and has not been the law in that country since the decision in the leading case of Mercer v. Whall, 5 Ad. & El. (N. S.) 447, in which last case (at page 463), Lord Denman, C. J., said: “If ever a decision was overruled on great deliberation, and by an undeviating practice ’ afterwards, it was that in Cooper v. Wakley.” The English judges, soon after the accession of Lord Denman to the office of Chief Justice of the Queen’s Bench, met and discussed this troublesome question, and adopted the following rule: “In actions for libel, slander, and injuries to the person, the plaintiff shall begin, although the affirmative is on the defendant.” A sketch of the history of this rule is given by Lord Denman in his opinion in Mercer v. Whall, supra. Two American decisions (Moses v. Gatewood, 5 Rich. L. [S. C.] 234, and Ransone v. Christian, 56 Ga. 351) hold that, in actions for libel and slander, where the defendant pleads justification, he assumes the affirmative, and the right to begin and reply is with him ; but both are contrary to sound principle, and the former is overruled in the state in which it was pronounced, by Burckhalter v. Coward, supra.

This conclusion is in conformity with a rule settled in England after a great controversy and generally followed in this country, that the right to open and close is with the plaintiff in every case where, in order to recover, he has something to prore, whether to establish Ms right or to show the extent of his damages. Mercer v. Whall, 5 Ad. & El. (N. S.) 447 (overruling Cooper v. Wackley, Mood. & Mack. 248); Huckman v. Fernie, 2 Jur. 444; Veiths v. Hagge, 8 Iowa, 163; Robinson v. Hitchcock, 8 Metc. (Mass.) 64; Perkins v. Ermell, 2 Kan. 325, 330; Amos v. Hughes, 1 Mood. & R. 464; Ridgway v. Ewbank, 2 Mood. & R. 217; McConnell v. Kitchens, 20 S. C. 430, 433; Boyce v. Lake, 17 S. C. 481; Kennedy v. Moore, 17 S. C. 464; Burckhalter v. Coward, 16 S. C. 435; Brown v. Kirkpatrick, 5 S. C. 267; Johnson v. Josephs, 75 Me. 544; Spaulding v. Hood, 8 Cush. (Mass.) 602; Thurston v. Kennett, 22 N. H. 151; Belknap v. Wendell, 21 N. H. 175; Lunt v. Wormell, 19 Me. 100; Sawyer v. Hopkins, 22 Me. 276; Washington Ice Co. v. Webster, 68 Me. 449; Page v. Osgood, 2 Gray (Mass.) 260; Comstock v. Hadlyme Ecc. Soc., 8 Conn. 254, 261; Bills v. Vose, 27 N. H. 212; Chesley v. Chesley, 37 N. H. 229; Seavey v. Dearborn, 19 N. H. 351; Fetters v. Muncie National Bank, 34 Ind. 251; Baltimore R. Co. v. McWhinney, 36 Ind. 436, 444; Hamlyn v. Nesbit, 37 Ind. 284; Thompson v. Mills, 39 Ind. 528; Williams v. Allen, 40 Ind. 295; Camp v. Brown, 48 Ind. 575; Aurora v. Cobb, 21 Ind. 493, 509; Shaw v. Barnhart, 17 Ind. 183; Buzzell v. Snell, 25 N. H. 474, 478; Hoxie v. Greene, 37 How. Pr. 97; Carter v. Jones, 6 Carr. & P. 64; s. c., 1 Mood. & Rob. 281; Rogers v. Diamond, 13 Ark. 474. Compare Pope v. Latham, 1 Ark. 66; Finley v. Woodruff, 8 Ark. 328.

II. The next error assigned is, that the court erred in giving instructions, at the request of the plaintiff, to the effect that, in order to establish his justification, it was necessary for the defendant to prove the acts of larceny charged against the plaintiff, by the same amount of evidence which is required to convict in criminal cases, that is, beyond a reasonable doubt. It was ruled by the Supreme Court in Polston v. See, 54 Mo. 291, that this is the law, and we know of no subsequent decision of our Supreme Court holding the contrary. We must, therefore, overrule this assignment of error.

III. The next assignment of error is, that the court refused the following instruction as requested by the defendant, but gave it after adding thereto the concluding sentence in brackets:

“The jury are instructed that the possession of property recently stolen is presumptive evidence of the guilt of the person in possession of the stolen property; and if the jury believe, from the evidence, that the plaintiff had in his possession any of the hogs of John Jackson, which had been recently stolen, or had marked the same in his own mark soon after the same was ■stolen, or if he had possession of the sow belonging to William Lonergan soon after the same was stolen, or if he had possession of the Norvell heifer soon after the same was stolen, or if he had possession of one of the hogs of the defendant soon after the same was stolen, then the burden of proving how he came into possession of the hog, or hogs, of said Jackson, and the sow of said Lonergan, and the heifer of said Norvell, and the hog of defendant, is upon the plaintiff, Samuel O. Elder, Jr., and unless he has shown this to the satisfaction of the jury, they will find for the defendant. ■ [But it devolves upon the defendant to show, by the evidence in the case, that the above-named property had been feloniously stolen, taken, and carried away before such possession of plaintiff becomes a guilty possession demanding an explanation at his hands.] ”

There is certainly no error in the concluding sentence which is complained of; and, as the evidence is not set out in the record, we must presume, in support of the action of the trial court, that the state of the evidence was such as rendered it a proper cautionary instruction.

All the judges concurring, the judgment is affirmed*