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fense. That qualification reads, “ Unless by his own wrong. ful act he made the harm or danger to himself necessary or excusable on the part of said Eady.” What wrongful act had been committed by the accused is not developed by the testimony, unless it consisted in his going to the home of his daughter in order to protect her. The jury may have so considered it, and treated this case with no greater right on the part of the father to interfere for the protection of the daughter than if he had been an entire stranger to both the wife and husband. This qualification should be eliminated from the instruction, and while the jury, in the exercise of a humane feeling, have by their verdict lessened the rigor of the law as expounded by the court, nevertheless the appellant was entitled to have considered by the jury his rights as parent and the provocation that prompted him in the endeavor to protect his daughter from the cruel assaults of her husband.
The judgment is therefore reversed, and cause remanded, with directions to award the appellant a new trial, and for proceedings consistent with this opinion.
MURDER, WBAT REDOon to MANSLAUGHTER. — As to what will redoco murder to manslaughter, 100 Croom v. State, 85 Go. 718, anten p. 179, and noto.
MURDER — INSTRUCTIONE. — It is the duty of the court to instruct the jury upon the law applicablo to overy degree of the offense indicated by the evidence, no matter how slight such evidence may be: Blocker v. State, 27 Tox. App. 16. Yet, where there is absolutely no ovidence tending to estaba lish a certain degree of murder, no instruction need be given with respect to it: State v. Munchrath, 78 Iowa, 269; note to Croom v. State, ante, p. 179. Where a defendant was convicted of manslaughter, apon a trial for murder, he can. not complain of a failure of the court to instruct as to the definition of manslaughter, if he did not ask for such an instruotion: Shubert v. State, 18 Misg. 446.
MURDER — THREATS AS EVIDENOE. — Seo Levy v. State, 28 Tex. App. 203; 19 Am. St. Rep. 826, and noto. Prior threats by the deceased against de. fendant are not admissible for defendant, unless some phase of the other evidence tends to show a case of self-defense: Rutledge v. State, 88 Ala. 85; Hinson v. State, 66 Miss. 632. Threats made by defendant against the deceased aro armissible to show malice on the part of the defendant: Babcock v. People, 13 Col. 516; Cheatham v. State, 67 Miss. 335; 19 Am. St. Rep. 310, and note; Pulliam v. State, 88 Ala. 1; Westbrook v. People, 126 Nl. 81; notwithstanding no special connection is shown between the threats and tho killing: Rains v. State, 88 Ala. 92; and although such threats were made long before the homicide: Cribbe v. State, 86 Ala 613; People v. Bronon, 76 Cal 573. But there is no legal presumption that a killing is done in pursuanco of a threat previously made by the accused against the deceased: Boler v. People, 129 TU. 118.
HOMICIDE One may repel force with force when he himself, or his wife, child, or servant, is forcibly attacked in person or property: Note to Stanley v. Commonwealth, 9 Am. St. Rep. 308; compare Estep v. Commor wealth, 86 Ky. 89; 9 Am. St. Rep. 260.
THOMAS v. IRELAND.
(88 KENTUCKY, 681.) JUDGMENTS, CONOLUSIVENESS OF, WHEN BASED UPON False RETURN.
Where plaintiff acts in good faith in obtaining a judgment upon the ro turn of a sheriff, indorsed upon the summons, that it was executed on the defendant, though in fact it was not, the return is conclusive us between the plaintiff and defendant. Such false return, though procured by ono of the defendants, and that defendant the husband of the wronged dofendant, will not justify setting aside the judgment as against the inno
cent plaintiff. The remedy is against the wrong-doers to recovor damages JUDGMENTS-COLLATERAL IMPEACHMENT OF RETURN. – A sheriff's return,
though false, cannot be impeached in a collateral proceeding for the purpose of setting aside or of getting rid of a judgment authorized by such roturn, G. W. Williams and Son, and W. S. Roberts, for the appellanta W. W. Ireland, and Miller and Morrison, for the appellees.
BENNETT, J. In 1880, upon the petition of J. B. Ireland and cross-petition of Joel Marshal against the appellants, the Hancock circuit court rendered judgment enforcing mortgage liens upon a tract of land belonging to the appellant Mrs. Thomas, which was executed by her and appellant J. C. Thomas to the appellees, J. B. Ireland and Joel Marshal. The return of the sheriff of Hancock County showed that summons was served upon both of the appellants in each case. The judgment was rendered by default, and the land was sold to satisfy the judgment, and purchased by Joel Mar Bhal.
In 1885 the appellants instituted this action in equity against the appellee J. B. Ireland and the representatives of Joel Marshal, he having died, to set aside said judgment, upon the ground that summons was not served upon the appellant Mrs. Thomas to enswer either the petition or cross-petition; that the return of the sheriff, showing that the summons on both petitions had been executed on her, which was false, was brought about by tbe appellant J. C. Thomas, who induced the sheriff not to serve the summons upon Mrs. Thomas, but to indorse the Bame executed upon her, in order to conceal from her the fact that her land was in danger of being sold to satisfy the mortgage debts, which were his and not hers, which conduct, it is alleged, was a fraud upon her. It is not alleged that the appellees J. B. Ireland and Joel Marshal, or either of them, were participants in this wrong-doing, or had any knowledge of it whatever.
It is well settled by this court that where the plaintiff acts in good faith in obtaining a judgment upon the return of the sheriff, indorsed upon the summons, that it was executed on the defendant, though in fact it was not, the return is conclusive as between the plaintiff and defendant. The stability of judgments requires this rule; otherwise judgments settling the rights of parties and giving remedies for the enforcement of these rights could never be regarded as permanent, but would be liable to be set aside, and the rights settled thereby be reopened, when the facts, not only appertaining to the service of the summons, but the merits of the controversy, had been forgotten or rendered unavailing by reason of the death of the parties or witnesses.
Of course, if the plaintiff induces the sheriff to make . return that he had served the summons, when he had note whereby the plaintiff is enabled to obtain judgment against the defendant, the chancellor would not hesitate to set the judgment aside, upon the ground that it was fraudulently obtained; also, if he knew the sheriff had made a false return, and took judgment against the defendant notwithstanding, he would be regarded as an aider and abettor of the fraud, and the chancellor would set the judgment aside. But as long as the plaintiff is an innocent party, no false return of the sheriff, though procured by one of the defendants, and that defendant the husband of the wronged defendant, will justify setting aside the judgment as against the plaintiff His protection lies in the fact that he is an innocent party.
When the plaintiff is an innocent party, the sheriff and his coadjutor, if he has one, are the wrong-doers, and the party may have an action against them, or either, for damages commensurate to the injury he has sustained growing out of the wrongful act.
Also, as the sheriff is the wrong-doer, and not a party to the judgment, the proceeding to impeach his return is collateral; and it is well settled that his return cannot be impeached in a collateral proceeding for the purpose of setting aside or of getting rid of a judgment authorized by such a return: Taylor v. Lewis, 2 J. J. Marsh. 400; 19 Am. Dec. 135; Smith v.
wronged Hornback, 3 A. K. Marsh. 392; Sergeant v. George, 5 Litt. 199.
The judgment is affirmed.
SHERIFF'S RETURN NOT COLLATERALLY ASSAILABLE — The misconduct of a sheriff in falsely returning process which he never served is not of itself sufficient ground for setting aside a judgment founded upon such false return: Fowler v. Lee, 10 Gill & J. 358; 32 Am. Dec. 172, and note. A sheriff's re. turn is conclusive between the parties interested and their privies: Studebaker V. Johnson, 41 Kan. 326; 13 Am. St. Rep. 287, and note. But a sheriff's return may be impeached when the matters stated therein are not presumptively within his personal knowledge: Great West Min. Co. v. Woodmas, 12 Col. 46; 13 Am. St. Rep. 204; or where the service was procured by fraudu. lent and unlawful means: Chubbuck v. Cleveland, 37 Minn, 466; 5 Am. St. Rop. 864, and note. In State Ins. Ca V. Waterhouse, 78 Iowa, 674, it is decided that where a notice has been served upon an agent of the defendant, there being no statutory warrant for service upon such agent, no jurisdiction is acquired over defendant, and a judgment rendered upon woh service is void
RILEY V. LEE.
(88 KENTUCKY, 603.) LIBEL- ADVERTISEMENT CHARGING FALSEHOOD. — A written or printed
publication which tends to degrade or disgrace the person about whom it is written or printed, or which tends to render him odious, ridiculous, or contemptible in the estimation of his friends or acquaintances or the public, is, per se, actionable as libelous. Accordingly, the publication of a card in a newspaper, charging a person with having uttered a falsehood,
is libelous per se. LIBEL. — MALICE IN LIBEL CONSISTS IN INTENTIONALLY PUBLISHING, with.
out justifiable cause, any written or printed matter which is injurious to the character of another; and everything written and published of another that is injurious to his character must, for the purposes of the action, be taken to be false, until it is shown by plea and proof to be true; and the presumption of malice remains through the entire case until it is met by plea and proof of a contrary motive, or that the publication was jus
tifiable. LIBEL - GRAVAMEN OF LIBEL CONSISTS IN ITS PUBLICATION. Accordingly,
the fact that a libelous card or advertisement was written by a person
other than the publisher will not exonerate the latter from liability. LIBEL – FREEDOM OF PRESS. — The constitutional guaranty of “the free.
dom of the press” is simply intended to secure to the conductors of the press the same rights and immunities, and such only, as are enjoyed by the public at large, in relation to criticising the acts of public officers and
private individuals. LABEL — DEFAMATORY ADVERTISEMENT. — An advertisement proclaiming the
dofamation of a person's character, and averred to have been published without malice, as a matter of news, is not the subject of a lawful adver. tisemont unless it is proved to be true, and in the abuenos of such proof, the publisher must answer in damages.
J. J. Landram, for the appellant.
BENNETT, J. The appellant's petition and amended petition charge the appellees, as the owners and publishers of a newspaper known as the Owenton News, in Owen County, Ken. tucky, with having maliciously procured and published, for the purpose of defaming, degrading, and holding up to contempt and ridicule the appellant, a writing which was false, and known by them to be false, as follows:
“Whereas O. V. Riley did make representations to me that it would be impossible for my sister, Bettie Threlkeld, to secure the position of teacher of the school in the Cedar Hill district, when, at the very time that he made this assertion, a bona fide contract with the trustees of said school bad been made, in which she was positively engaged to teach said school; and whereas the disappointment occasioned by this misrepresentation of his caused my sister's mind to be sorely troubled during her late illness, causing her to despair, and assisting the ravages of disease to undermine her constitution, and further considering the fact that his sister had applied for the same school,
- I regard this conduct in him as uncalled for, ungentlemanly, and detestable as his statement was fallacious. (Signed]
"A. E. THRELKELD, M. D." The lower court sustained demurrer to the petition and amended petition, setting up the foregoing matters. From this ruling the appellant has appealed.
The sole question to be determined is, Are the matters charged in the petition and amended petition libelous?
There is a material difference between slander and libel. Many things are actionable when written or printed and published that are not actionable if spoken, as the following cases show:
In Clement v. Chivis, 9 Barn. & C. 172, it is said: “There is A marked distinction in the books between oral and written blander. The latter is premeditated, and shows design; it is more permanent, and calculated to do a much greater injury, than blander merely spoken."
In McClurg v. Ross, 5 Binn. 218, it is said: “Words are often spoken in heat, in haste, and with very little reflection or ill intention, and frequently forgotten or repented of as soon As spoken. But writing requires deliberation, and is therefore more injurious to the character attacked. We are apt to sup