
    (Montgomery Co., O., Common Pleas.)
    LANDIS v. CAYLOR.
    
      Slander —
    Words charging that plaintiff is in station-house; that “he got drunk, fell ¡ off the street car, and was arrested, and the police took him to police headquarI tqrs, ” are not actionable per se.
   DUSTIN, J.

This is an action in slander to recover $5,000 damages. The words alleged to have been used by the defendant, • of and concerning the plaintiff, are: “Landis (meaning this plaintiff) is in station house. He got drunk in Dayton (meaning Dayton, Ohio),and fell off the street car, and was arrested, and the police took him to police headquarters on their bicycle.”

It does not appear from the petition what the occupation of the plaintiff is, and no special damages are alleged. A general demurrer has been filed to the petition, raising the question whether the words are actionable per se.

In 1st Starkie on Slander, p. 21, it is laid down that “No charge, however foul, will be actionable without special damages, unless it be punishable in the temporal courts of criminal jurisdiction.”

The Supreme Court of Ohio has, in a number o£ cases, held that words not spoken of a person in his calling, trade or profession, are not actionable, un less—

First — They charge him with the commission of an indictable offense, involving moral turpitude, or infamous punishment, or,

Second — Impute some offensive, or contagious dise'ase, calculated' to deprive him of society.

Under these rules it has been held that ■charges of assault and battery, fighting, resisting an officer, keeping a tavern without license, etc., though subject: to indictment, do not involve moral turpitude, and hence are not actionable per se. Dial v. Holier.

Also, a marge that a person committed a burglary or a larceny of the house or goods of the firm, is not actionable, because in law a partner cannot steal or burglarize the goods or premises of the partnership,and hence the offense is not indictable. Alfele v. Wright, 17 Ohio St., 238.

Also, a charge that a man is a deserter is not actionable, since desertion is not indictable and punishable by a court of criminal jurisdiction, but by a military court martial. Hollingsworth v. Shaw, 19 Ohio St., 430.

These citations are sufficient to show how strictly the above rules have been followed.

Only one exception has been allowed, and that has been in favor of woman. Words imputing want of chastity in a woman have been held actionable per se, because they tend to exclude her from society. The same words spoken -of a man are not actionable, because the law recognizes the fact that society has more forbearance toward the man than the woman.

It has never been determined by our Supreme Court whether an accusation of drunkenness is actionable or not (except in the case of Hayner v. Cowden, 27 Ohio St., 292, where the words were spoken of a minister in his profession, and we are obliged to apply the above rules to such a charge, to see whether it is included.

It is claimed by plaintiff, that drunkenness is a crime in Ohio, citing sec. 6940, Rev. Stats., which reads: Whoever is found in a state of intoxication shall be fined five dollars.”

The statute is by no means a dead letter, and is as frequently enforced as any upon these books. But, does it answer the requirement of the above rules? Is drunkenness made, thereby, a crime involving moral turpitude, or infamous punishment?

We must go back to the old distinction between mala in se and mala prohibita. By crimes involving moral turpitude are meant mala in se only. The essence of all crimes in se lies in the intent of the criminal to do wrong to another. There must be an evil purpose to injure the person or estate of a fellow being or a corporation, in a manner affocting the peace and good order of society, and that evil purpose must be carried out or attempted. No self-inflicted wrong is recognized as a crime by laws governing temporal courts. Military courts punish self-maiming, and ecclesiastical courts have a penalty of suicide, but with these tribunals we have nothing to do.

Drunkenness is a prohibited crime, and, for obvious reasons, very properly punishable as such, but no statute nor human enactment can make it a crime in se, because it lacks the essential element of inherent immorality to place it in that category. The best man in the community might, inadvertently, or for medicinal purposes, drink enough liquor to make him as drunk as the veriest sot that rolls in the gutter, and be just as liable to be arrested and fined five dollars, but he would not be guilty of an immorality. Ordinarily, a state of intoxication is a physical disability, voluntarily incurred, but whether accidental or intentional, it is not a crime in itself involving moral turpitude. Coffee v. Crowley, Cleveland L. R., vol. 1, p. 35.

But, being a prohibited crime, is the punishment infamous? I answer ‘No.” It is usually held that a punishment to be infamous must be to some extent corporal, as by confinement in the penitentiary, or sentence to labor. A mere fine of five dollars is not, in my view, an infamous punishment.

Finally, it is a matter of common observation that a man who has been guilty of intoxication is not thereby excluded from society. It might be different in the case of a woman, but that is not for decision at this time.

The remainder of the alleged charge, viz., that plaintiff“fell off a street ear, was arrested and taken to the station •house by the police on their bicycle,” does not import a crime.

I am, therefore,of the opinion that the .alleged slanderous words are not actionable per se, under the rules in Ohio, and j that the demurrer to the petition should be sustained.  