Dissenting opinion of
Judge Sherwood.Polston broughthissuitinthe Audrain Circuit Court against See, for certain slanderous words, alleged to have been spoken and published by the defendant, charging the plaintiff with the crime of theft.
*297The answer of the defendant denied the speaking of the words set forth in the first and second counts of the petition, but admitted uttering the words specified in the third count, and said that they were true, and that plaintiff did steal, take and carry away a large quantity of defendant’s plank and lumber.
The cause was tried before a jury, and the evidence was conflicting. At the conclusion of the testimony the court gave nine instructions for the plaintiff, and six for the defendant. Among those on behalf of the plaintiff, was one couched in these words:
“The jury are instructed that to support the special plea of justification set up by the defendant in this case, to-wit: that the plaintiff did steal, take and carry away defendant’s lumber, the same evidence must be adduced as would be necessary to convict the-plaintiff upon an indictment for the ciime imputed to him; and if the jury entertain a reasonable doubt of the plaintiff’s guilt of the crime charged against him by the defendant, the jury should find a verdict for the plaintiff, and assess his damages at such sum as tlie_y may deem him entitled to under all the circumstances, not to exceed the sum of five thousand dollars. Any such doubt however, to be available to plaintiff, must be a rational doubt, growing out of the evidence in the case, and consistent with it, and not a mere hypothesis or possibility of innocence.”
This instruction was objected to by defendant, and the propriety of giving it will therefore now be discussed.
Mr. Greenleaf, in his work on Evidence, lays down the rule in this'way:
“To support a special plea of justification, where crime is imputed, the same evidence must be adduced as would be necessary to convict the plaintiff upon an indictment for the crime imputed to him; and it is conceived, that he would be entitled to the benefit of any reasonable doubts of his guilt in the minds of the jury, in the same manner as in a criminal trial.” (2 Greenlf. Evid., § 426.)
But of the authorities cited in the margin in support of *298the text, some of them either contravene the doctrine altogether, or yield it but a doubtful and indifferent support. And the English cases, which uphold it, do so on grounds which are purely local, and applicable in that country alone where the adjudications were made.
The reason, which gave origin to the rule in England was this:
If upon the trial of the plea of justification (which imputed the commission of a felony) the issue was found for the defendant, the plaintiff was thereupon held to answer the felony without any further accusation ; the verdict being held equivalent to an indictment, and the intervention of a grand jury unnecessary. (Cook vs. Field, 3 Esp., 133; 2 Curw., Hawk., 291; 2 Hale 150; 1 Chit. C. L., 135 and 164.) So that pqnal consequences to the plaintiff ensued upon a finding under such circumstances for the defendant, and the rigidity of the rule we are considering was but a part and parcel of that tenderness and benignity, which the law has ever extended towards him whose life or liberty is imperiled.
And to such an extent in England was the doctrine carried, where the verdict in a civil case disclosed the commission of a felony, that it was not confined to actions for libel and slander alone, but parties were frequently sent over to the criminal side of the assizes to take their trial for felonies as the result of verdicts in other civil actions. (Prosser vs. Rowe, 2 C. & P., 421, and note 6.) But as in this country no such results attend the verdict of a jury in any civil case, it would seem evident that the rule, as well as the reason on which it is founded, should cease together in accordance with the maxim “Oessante rations legis cessatipsa lex.”
And in those States of our Union, where the English rule has been followed, it is thought to have resulted from the inadvertent adoption of proceedings, which have no applicability to our, in many respects, widely different system of jurisprudence.
In Iowa the rule obtaines, and the later decisions in that *299State are placed upon the ground, that the question is no longer res integra, that it has prevailed for many years, and the Legislature has not seen fit to interfere. But there, as above seen, the point has been the subject of repeated adjudications by the Supreme Court of that State. So also in Indiana the rule prevails in all its broadness; and no doubt for like reasons as cited above. (Tull vs David, 27 Ind., 377.) However in the earliest decisions in that State, where the question arose, nothing is said touching the doctrine of reasonable doubt as applicable to such cases, but only that “to support his plea he (the defendant) was bound to show, that the plaintiff had sworn falsely on the tidal to a matter material to the issue.” (McGlemery vs. Keller, 3 Blackf., 488.) And in Offatt vs. Earlywine, 4 Blackf., 460, the court, while holding the same kind of evidence was necessary on the part of the defendant who justifies, declined to say, whether the same strength of testimony was requisite or indispensable to the maintenance of the defendant’s plea.
In the subsequent eases in that State, the broad doctrine, as enunciated in Tull vs. David, supra, has been sanctioned. And this is true of many other States, But it is conceived that, wherever this doctrine has received the sanction of the courts of this country, two elements will be found in the error which conduced to such result:
First, that, already alluded to, of blindly following English precedents, oblivious of the reasons which gave them origin : Second, that of confounding' together, and regarding as identical, the same kind with the same degree of proof.
Where the alleged slanderous charge imputes the crime of perjury, there the oath said to be falsely taken must be rebutted, or neutralized, by the testimony of one witness. The ease then stands oath against oath; then the equipoise, thus created in the evidence, is, in- order to sustain the plea of justification, to be overcome by the testimony of one witness, or by eoiToborative circumstances. And this is all that many of the authorities intend, when employing language of a much stronger and more comprehensive signification.
*300The same view, as here expressed on this subject, is evidently taken also in Hopkins vs. Smith, 3 Barb. [S. C.], 599, in commenting upon What is meant in Woodbeck vs. Keller, 6 Cow., 118, where it is said, “that where the defendant justifies a charge of perjury, the evidence must be-the same as required to convict a defendant on an indictment for perjury and, in construing the language employed by the court in Clark vs. Dibble, (16 Wend., 601), “ that the evidence must be sufficient to convict” &c., for the court in Hopldns-vs. Smith, supra, after making the quotations just cited, say: “In other words the defendant must prove all the particulars which constitute the offense of perjury.”
During the prevalence of the former practice in chancery the answer of the defendant, being under oath, had to be disproved by two witnesses, or by one witness and corroborating circumstances, and yet no one ever had the temerity to contend, that the mind of the chancellor, before entering a decree, had to be satisfied of the truth of the allegations of the bill, beyond a reasonable doubt.
Under the operation of the English rule in those States, where it has been adopted, A. may sue B. for the crime of burning his house, and may recover upon testimony which is sufficient in other civil cases. But if A. is so unguarded as to state, that B. did such criminal act, and B. sues him, he will be mulcted in damages, if not able to establish beyond “a reasonable doubt,” that B. had committed the crime of arson.
Surely such chameleon-lilce changes in the rules of evidence, where the same facts are involved, do not comport with the dignity of the law as a science, nor with the proper administration of justice. Our natural sense of right revolts at such purely artificial and palpably unjust distinctions.
The point now being considered is of first impression in this State, and it is therefore important that it be settled on a correct basis, and in strict accordance with the analogies of the law and practice in other civil actions.
A question, nearly akin however to the one under discussion, was passed upon by this court in Marshall vs. Thames. *301Fire Ins. Co., 43 Mo., 586, an action on a policy of insurance, and the defense was, that the plaintiff had burned the property insured ; after stating what the rule is in criminal cases, it is said: “In all civil cases it is the duty of the jury to decide in favor of the party on whose side the weight of evidence preponderates and according to the reasonable probability of the truth.” And manifestly there can be no reason founded inprinciple., why a greater amount or degree of evidence should be required in an action of slander, where arson is the charge, and the truth of that charge constitutes the justification, than in an action on a policy of insurance, where the truth of a like charge is plead as a defense to a suit on the policy.
Although the views here ' enunciated are in opposition to the rule as laid down by respectable and able authorities in many, if not in a majority, of our sister States, yet these views are, as I think has béen-plainiy shown, supported by sound reasoning, and are besides upheld by courts of unquestioned ability in the States of Maine, New Hampshire North Carolina, Louisiana and Alabama. (Ellis vs. Buzzell, Am. Law, Reg. [July 1873] 426 ; Matthews vs. Huntly, 9 N. H., 146 ; Folsom vs. Braun, 25 Id., 114; Kincade vs. Bradshaw, 3 Hawks., 63 ; Hoffman vs. Western M. & F. Ins. Co., 1 La. An., 216; Hopper vs. Ashley, 15 Ala., 457; Spruil vs. Cooper, 16 Id., 791.)
’Viewing this matter as above indicated, the giving of the instruction complained of constitutes a good ground for reversal of the judgment recovered by the plaintiff. In addition to this, the court, on the part of the defendant, gave an instruction to the effect, that, if plaintiff, either in person or by his agent, took and carried^ away the lumber of defendant, knowing it to be defendant’s, without the consent of defendant, the jury should find for the defendant.
This instruction utterly ignores and omits the essential ingredient of a felonious intent, without which there could be no larceny.
By no possible stretch of ingenuity can these instructions be made to harmonize. They are in direct and irreconcilable conflict, and neither one asserts the law. (43 Mo., 586.)
*302The jury is told to find a verdict for the plaintiff, unless the evidence establishes his guilt beyond a reasonable doubt, and for the defendant, if the plaintiff “took and carried away” his property. These instructions could have had no other effect than to confuse and mislead the jury; to make them verdict mere guess work.
The above are grounds very satisfactory to myself at least, why this cause should be re-tried; but my associates, with whom I do not concur as to the chief question involved in this case, while they do not controvert the correctness of my reasoning, state, in behalf of the conclusion which they have reached, that the plea of justification inactions of slander is an exception to the general rule; and I am told that: “The reason of the rule” (in such actions) “is, that a verdict of a jury on the question of guilt or innocence has at least the same moral force as a .verdict in a criminal trial for the same offense,” and that “there seems to be no other civil case where a verdict has the same moral force.” But this is altogether an erroneous idea, as I will now proceed to show.
In an action for Crim. Con. the verdict, if for the plaintiff, would set the seal of an indelible stigma on the character of her, concerning whom the action was brought, as effectually as if the parties engaged in the criminal act were found guilty thereof upon an indictment charging such criminality, and consequently a verdict for the husband, in the civil suit I have instanced, would be as heavily freighted with “ moral force f as would the verdict for the defendant, which upholds the plea of justification, in an action for slander.
So also, in an action on a policy of insurance, a verdict, which in effect brands the plaintiff therein with the crime of arson, would carry with it an amount of “ moral force” not inferior in degree to that borne by a verdict,-which establishes the truth of the alleged slanderous words, in a suit for defamation of character.
The above illustrations are only a few out of a great number, which might be employed to show the utter fallacy of the argument based on “ moral force.”
*303It is by no means of infrequent occurrence, that verdicts in numerous civil actions practically establish that a party to the action is guilty of some highly criminal offense, and yet this fact is not allowed to' change or overturn the rules of evidence, nor to compel an in.crea.se in the amount of testimony offered to support any given issue.
Mr. Greenleaf, in his work on Evidence, lays down just the same rule in actions on policies of insurance, where the charge is that the plaintiff burnt his .own property, as he does in actions of slander where the defendant justifies by pleading the truth of the alleged slanderous words. (2 Glf. Ev., § 408.)
And the learned author cites “English Authorities” in support of his text. But these authorities are not held for law in.many of the American States, nor in this State as already shown in Marshall vs. Thames Fire Ins. Co., supra, where this court repudiates the English doctrine, and asserts the sufficiency of a preponderance of evidence in such cases to establish the defense that arson had been committed on the property insured. Eor Judge Wagner, in commenting on the issues raised by the pleading, expressly says :
“ The defendant in its answer ***** averred as matter of defense, that the burning,of the Steamboat Magnolia ***** was occasioned, caused and brought about, by the direct agency, procurement, contrivance and directions of Marshal and Kilpatrick, the plaintiffs. The whole defense was distinctly staked upon that issue,”
But it is said that “in actions on policies of insurance, where the offense is, that the plaintiff burnt his own house, it has been held, that a mere preponderance of evidence is sufficient to establish the defense. The distinction is that this is a good defense under the policy, no matter what the intent of the plaintiff was in burning his house.”
This attempted distinction is however by no means satisfactory ; because it would be impossible to directly charge the plaintiff with burning his own property without imputing to him'the commission of a felony, and without, if the verdict sustained the charge, effectually stamping the disgrace *304jf such felony upon him. Another basis suggested, rather than offered, to sustain the opinion of the court is that, so far as the court is informed, the legal profession throughout the State have acted upon the presumption that it (the rule referred to) was the settled law.
Heretofore, it had been supposed, that it belonged exclusively to this tribunal to determine what the law, settled or otherwise,was, and that, in so declaring the law, it would not be engaged in any extra judicial or legislative act.
Aside from decisions, which by being acted upon for a series of years have thereby become rules of property, when a point is presented for the first time to a court of last resort, it should be the highest aim of modern adjudication to follow principle always, in preference to, and rather than, mere precedent ; to subject decisions of other courts, or the dicta of text writers, to the crucial test of a skeptical and remorseless " analysis, and to unhesitatingly reject them, if found wanting in that life of the law, sound reason.
For, as Sir William Jones so eloquently observes: “It law be a science, and really deserve so sublime a name, it must be founded on principle, and claim an exalted rank in the empire of reason.”