Ausman v. Veal: Indiana, June 2, 1858

Ausman and Wife v. Veal.

[NO NUMBER IN ORIGINAL]

SUPREME COURT OF INDIANA

10 Ind. 270; 1858 Ind. LEXIS 865.

May Term, 1858, Decided

PRIOR HISTORY: [**1] From the Miami Circuit Court.

DISPOSITION: The judgment is reversed with costs. Cause remanded for further proceedings.

CORE TERMS: bestiality, pups, slander, disjunctive, horse, larceny, daughters, sexual, sodomy, dog, actionable, accusation, spoken, impute, bound to know, neighborhood, gathering, haystack, innuendo, bastards, falsity, woman, tales, talk, sex

HEADNOTES

Slander -- Pleading -- Charge in the Disjunctive -- Impossible offense. -- Suit for slander.

The words alleged to have been spoken of the plaintiff were as follows: "She [meaning said plaintiff] is out gathering up news. She has run all over the neighborhood telling tales on my family. She can talk as much as she pleases. Thank God if my daughters did have bastards they never had pups. She did have pups in Ohio, and it can be proved. She had two pups by a haystack," -- thereby meaning that she had been guilty of bestiality, or the crime against nature.

Demurrer sustained. The objections to the complaint were, 1. That the innuendo is in the disjunctive, in that it alleges an intention to charge bestiality or the crime against nature. 2. That the words charge an impossible crime and an impossible fact.

Held, that the first objection was not well taken.

Held, also, that the Court cannot say that sexual connection between a dog and a woman is impossible, nor that if possible, conception might not follow; but if such connection and conception, are impossible, it is not known to the people; and the people, though bound to know the law, are not bound to know philosophy or the facts and principles of science: hence, the injury to the plaintiff would not be affected by the truth or falsity of such facts or principles.

COUNSEL: J. M. Wilson, H. J. Shirk and D. D. Pratt, for appellants.

R. P. Effinger and N. O. Ross, for appellee.

JUDGES: Perkins, J.

OPINION BY: Perkins

OPINION

[*271] Perkins, J.--Suit for slander. Demurrer to complaint sustained, and judgment for the defendant. The complaint is by Eli Ausman and wife Mary, charges that in a certain discourse held at, to-wit, on the 27th of June, 1857, concerning the chastity of the said Mary, and concerning her having had sexual connection with a dog, in presence, * * the defendant said:

"She [meaning the said Mary] is out gathering up news. She [meaning said Mary] has run all over the neighborhood telling tales on my [meaning defendant's] family. She [meaning said Mary] can talk as much as she pleases. Thank God, if my [meaning defendants] daughters did have bastards, they [meaning defendant's daughters] never had pups. She [meaning said Mary] did have pups in Ohio, and it can be proved. She [meaning said Mary] had two pups by a haystack;" thereby meaning that she had been guilty of bestiality, or the crime against nature.

The objections [**2] to the complaint are--

1. That the innuendo assigning the meaning to the words containing the charge is in the disjunctive, viz., that it was intended to charge bestiality, or the crime against nature.

We take it that there is a difference in signification between the terms bestiality, and the crime against nature. Bestiality is a connection between a human being and a brute of the opposite sex.

Sodomy is a connection between two human beings of the same sex--the male--named from the prevalence of the sin in Sodom.

Both may be embraced by the term, "crime against nature," as felony embraces murder, larceny, etc.; though we think that term is most generally used in reference to sodomy. Lev. ch. 18, v. 22, ch. 20, v. 13; Deut. ch. 23, v. 17; Rom. ch. 1, v. 27; 1 Cor. ch. 6, v. 9; 1 Tim. ch. 1, v. 10. Buggery seems to include both sodomy and bestiality.

Still, we do not think the objection valid in this case. We do not say that it would be in any case. Starkie, in his work on Slander (vol. 1, p. 71,) says: "No doubt it would now be held that words imputing a criminal act in the disjunctive are also actionable." But, however this may be, it was decided by this Court, in Rodebaugh [**3] v. Hollingsworth, 6 Ind. 339, that an inference expressed in the colloquium or innuendoes in a complaint for slander, if not a correct inference from the words averred to have been spoken, cannot affect the sufficiency of such averments. This principle applies in the case before us.

2. It is said that the words charge an impossible crime, and [*272] an impossible fact, and thus carry upon their face their own refutation.

It is true that where the words used impute an act which is not a crime, the calling it a crime by the person making the accusation, will not amount to a slanderous charge; as, if a person should say of another, speaking under the common law, "he is guilty of larceny, for he picked apples off of my trees," here, the charge shows on its face that a trespass, not a larceny, was committed, and the misnaming it by the slanderer, will not raise to a criminal accusation. But "if a person who had no horse were to publish these words: J. S. hath stolen my horse--the discredit would be as great to J. S. as if the publisher had had a horse; for every person who heareth the words may not know whether he had a horse or no;" and the charge would be actionable. [**4] Starkie, supra, 77. This shows that Snyder v. Degant, 4 Ind. 578, decided, by this Court, is not law.

Whether the words in the case at bar imply an impossible fact, or impute an impossible crime, we are not able to say.

Whether it is physically impossible for sexual connection to take place between a dog and a woman; and whether, could such connection take place, it is a physical impossibility that conception should follow, we are not advised. If such be the case, we do not think it is generally known to the people. They are presumed, bound, indeed, to know the law, but not philosophic, or scientific facts and principles. Hence, we think, the injury to the plaintiff may not be affected by the truth or falsity of such facts and principles, and that this action may well lie.

Per Curiam.--The judgment is reversed with costs. Cause remanded for further proceedings

Notes

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