Ausman v. Veal: Indiana, June 2, 1858

Introduction

This slander case, arising out of a conflict occurring on June 27, 1857, was first tried in the Miami, Indiana, Circuit Court, the decision of which was then was appealed to the highest court of Indiana which issued a decision on June 2, 1858. That decision is described here.

The case involved charges by an individual named Veal of "bestiality" against Mary Ausman, and the case included references to "buggery", the "crime against nature", and "sodomy".

This legal decision is one of numbers of legal case decisions mentioning "buggery", "crime against nature", or "sodomy" appealed to higher state courts in the U.S. in the nineteenth-century. These case records are being researched and republished on OutHistory.org as a public service. For a list of these nineteenth-century appeals cases included on OutHistory.org see Legal Cases Appealed: January 1, 1800-December 31, 1899

Document: version reprinted from Ausman v. Veal, 10 IN 355

[On right margin:] May Term, 1858

[page 355]

[centered] AUSMAN and Wife v. VEAL.

Suit for slander. The words alleged to have been spoken of the plaintiff were as follows: "She [meaning 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 defendant's] 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, &c.

[Paragraphing added]

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, 1. That both sodomy and bestiality may be embraced by the term "crime against nature;" but that sodomy is generally meant by the use of that term.

2. That the first objection is invalid; for an inference expressed in the colloquium words averred to have been spoken, cannot affect the sufficiency of such averment.

3. That the Court cannot say that sexual connection between a dog and a woman is impossiblc, 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 alfected by thc truth or falsity of such facts or principles.

Snyder v. Degant, 4 Ind. R. 578, overruled.

[on right margin:] Wednesday, June 2

APPEAL from the Miami Circuit Court.

PERKINS, J.-Suit. for slander. Demurrer to the complaint sustained, and judgment for the defendant.

[page 356]

The complaint is by Eli Austman and his wife Mary, and charges that in a certain discourse held at, &c., 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, &c, 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 defendant's] daughters did have bastards, they [meaning defendant's daughters] never had pups. She [meaning the said Mary] did have pups in Ohio, and it can be proved. She [meaning the said Mary] had two pups by a haystack; thereby meaning that she had been guilty of bestiality, or the crime against nature, &c.

The objections 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, &c.; though we think that term is more 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

[page 357]

the disjunctive are also actionable." But, however this Term, may be, it was decided by this Court, in Rodebaugh v. Hollingsworth (1), that an inference expressed the colloquum 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 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 it 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. Starkie, supra, 77. This shows that Snyder v. Degant, 4 Ind. R. 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.

Document: Version reprinted from 71 Am. Dec. 331

UNDER CONSTRUCTION

[centered] AUSMAN v. VEALl.

[10 INDIANA, 355

Bestiality is Connection Between Human Being And Brute of Opposite Sex.

Sodomy Is Connection Between Two Human Beings or Male Sex. Benamed from the prevalence of the sin in Sodom. "crime Against Nature" May Embrace Both Bestiality And Sodomti though that phrase is generally in reference to the latter.

Buggery Seems To Include Both Sodomy And Bestiality.

Objection That Innuendo Is In Disjuncttvk, In That It Alleges InTention To Charge Bestiality, Or "crime Against Nature," Is Invalid; for an inference expressed in the colloquium or innuendo in • complaint for slander, if not correct from the words alleged to hare been spoken, cannot affect the sufficiency of the averments of the declaration. This is on the ground that a declaration in slander may be sufficient without the colloquium or innuendoes, which, in such case, may be regarded as surplusage.

Injury To Plaintiff In Suit For Slander Is Not Affected By Truth Or Falsity Of Facts And Principles which may or may not constitute an impossible crime and an impossible fact. Hence an action foF slander will lie for charging an impossible crime and an impossible fact. The court will not say that sexual intercourse 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.

The facts are stated in the opinion.

J. M. Wilson, H. J. Shirk, and D. D. Pratt, for the appellants, R. P. Effinger and N. 0. Ross, for the appellee.

By Court, Perkins, J. Suit for slander. Demurrer to the complaint sustained, and judgment for the defendant. The complaint is by Eli Ausman and his wife Mary, and charges that in a certain discourse held at, etc., to wit, on the twenty-seventh of June, 1857, concerning the chastity of the said Mary, and concerning her having had sexual connection with a dog, in presence, etc., the defendant said: "She [meaning the said Mary] is out gathering up news. She [meaning said Mary] has run all over tho 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 defendant's] daughters did have bastards, they [meaning defendant's daughters] never had pups. She [meaning the said Mary] did have pups in Ohio, and it can be proved. She [meaning the said Ms'-y] had two pups by a haystack"—thereby meaning that she had been guilty of bestiality, or the crime against nature, eta

The objections 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 th* 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 more generally used in reference to sodomy: Lev. xviiL 22; xx. 13; Deut. xxiiL 17; Rom. L 27; 1 Cor. vi 9; 1 Tim. L 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 v. HoUingsworth, 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. The principle applies to the case before us.

2. It is said that the words charge an impossible crime and 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 it 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: 2 Starkie on Slander, 77. This shows that Snyder v. Degcmt, 4 Ind. 577, decided by this court, is not law.

Whether the words in the case at bar imply an impossible (act 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 •uch 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.

[Page ]

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.

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

Innuendo Cannot Extend Mxaninq Ot Words in action for slander. If the words in themselves are not actionable, their meaning cannot be extended by the innuendo to make them actionable: Sheely v. Biggs, 3 Am. Dec. 552; Coburn v. Harwood, 12 Id. 37, and cases cited in note to same 45. Words charging the "orime against nature" are not actionable per te in Alabama: Id., and extended note thereto 39-46, showing what words are actionable per te.

Words May Bb Shown To Rklatk To Act Not Offknsk. — In action of slander, the defendant may show that the words related to a known parties. laract which did not amount to the offense the words would otherwise import: Norton v. Ladd, 20 Am. Deo. 573.

Citations Of Principal Cask.—In Proctor v. Oweru, 18 Ind. 22, the admission of testimony as to the understanding of a witness was relied upon for a reversal. But the court deemed it unnecessary to decide in what cases the jury are to judge of the meaning of words; and when and for what purposes the understanding of those to whom they are addressed may be proved and cited the principal case, among others, as having more or less bearing upon these questions. In Carmickael v. Shiel, 21 Id. 66, the defendant had been in plaintiff's service, and while so in his service, she brake certain dishes of the house Plaintiff deducted the price of them from her wages, with defendant's aoquiescence. Soon afterwards she openly in the day-time took away the fragments, claiming them as her property, and that she bad paid for them. The alleged charge was, "Now, I want you to bring back the dishes you stole from my house." But the court said: "Where the persons who hear a charge of larceny, oomplained of as slanderous, know the transaction referred to in the charge, know that that particular transaction is the only one referred to as the ground of the charge, and knew that that transaction was not larceny, but simply innocent, or a trespass, no action for slander can be maintained. The charge is a mere misnomer, in a legal point of view, of a transaction, but conveys no charge of crime to the publio ear, and in no manner puts the person charged in peril of the consequences of crime." To this the principal case was cited. laShigley v. Snyder, 45 Id. 541, the appellant had charged the appellee with having had sexual intercourse with a sow; and the court said: "The allegation that the words used had a provincial meaning in the neighborhood where thoy were spoken, and that they meant and were understood to mean that the appellee had been guilty of sexual intercourse with a sow," was sufficient to show the words to be actionable. The principal case was cited to this. It was also oited in Oabe v. McO'mnit, 68 Id. 647, to the point that the publication in that oaaa was a libel per te, and that it was not privileged. Peru And Indianapolis R. R. Co. V. Hasket.

Notes

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