State v. Fosburgh

WHITING, P. J. Appellant was convicted of the crime of libel, and has appealed to this court. He assigns as errors the — 375 — overruling of his demurrer to the information, certain rulings upon the admission and rejection of evidence, the refusal to give certain instructions asked for, and the giving of certain instructions. The demurrer specified as grounds thereof: “ (i) That said information does not state facts sufficient to constitute a public offense. (2) That said information is so indefinite and uncertain that it does not state facts that will enable a person of common understanding to know what offense is intended to be charged.” [1-3] It is appellant’s contention that the information was insufficient in that it nowhere charged that the libel was false, and did not allege that the libel was published with “intent to injure” the party libeled. Section . 318, Penal Code, provid.es: “Sec. 318. In all criminal prosecutions or indictments for libel the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted.” Under this section the state need neither alleg’e nor prove the falsity of the libel. Sections 315 and 316, Penal Code, are as follows: “Sec. 315. Any malicious injury to good name, other than by words orally spoken, is libel. “Sec. 316. Every person who willfully, and with malicious intent to injure another, publishes any libel, is guilty of a misdemeanor.” Under section 316 there must be proven an intent to injure, which intent may be presumed from the fact of the publication and the nature of the libelous article. The intent to injure being necessary in order to constitute the offense, such intent must be pleaded, but not necessarily in the language of the statute. Section 228, Code of Criminal Procedure, provides: “Sec. 228. Words used in a statute to define a public offense, need not be strictly pursued in the indictment or information; but other- words conveying the same meaning may be used.” [4] The information charged that appellant did “then and there unlawfully, willfully, and maliciously write and publish of and concerning one John D. Srnull, which was intended to and did refer to the said John D. Smull, a certain false scandalous, and — 376 — malicious libel,” and, further, that “said libel was a malicious defamation of the character of the said John D. Smull tending to provoke him, the said John D. Smull, to wrath, and expose him, the' said John D. Smull, to public hatred and ridicule, and to deprive him, the said John D. Smull, of the benefit of public and social intercourse.” We think that in line with the holdings of this court in State v. Edmunds, 20 S. D. 135, 104 N. W. 1115, and State v. Flute, 20 S. D. 562, 108 N. W. 248, the demurrer was properly overruled. The libel was published by appellant in a newspaper of which he was the editor. The article in question, after referring to certain reports concerning the financial standing of appellant’s paper —which reports, it is charged, were malicious, and were being circulated by the former manager, of such paper — stated that the writer “knows this ex manager’s history like a book from the time be assumed control of this paper down to the present time, and when we get ready to publish it we shall hew to the line, and let the chips fall where they may,” and closed by stating that such paper would “in a very short time be out from under the burden of debt which was loaded upon it to satisfy an alleged man’s appetite for booze and lust.” It was upon the latter quotation, omitting the words “booze and,” that the charge was based. It was conceded that the libel referred to one Smull. [5, 6] The state offered and there was received in evidence, over appellant’s objection, the testimony of Smull and one other witness as to what they understood was meant by the words upon which the charge was based. They testified that they understood ■that by such words it was intended to charge that Smull was guilty of adultery. There was no claim that the words published had any peculiar meaning in the community where the paper was published and circulated, and it seems to us that the admission of this evidence was clearly error. These witnesses were not expert lexicographers, and it certainly was for the jury, without any such evidence, to say what there was, if anything, of a libelous nature in the words published, and upon which the charge against appellant was based. But we think the error not prejudicial, because the words used were clearly subject to an interpretation rendering them libelous per se, and therefore, for reasons hereinafter stated, the verdict of the jury should not be set aside. — 377 — [7] The defense sought to prove that Smull, while managing the paper in question, had through the excessive use of intoxicants, squandered the assets of such paper. The state objected to such evidence, and it was excluded. This was clearly correct. A defendant cannot be allowed to defend against a charge of libel by showing that those parts of his publication which are not made the basis of the charge preferred are either time or justifiable. Evidence upon such points would have been as immaterial as though there had been nothing in the publication in relation to Smull’s squandering the assets of such paper for strong drink. The state had not charged and was not attempting to prove that such parts of the publication were libelous. [8] Appellant contends that the trial- court, through its refusal to give certain instructions asked for, and through the giving of certain other instructions, did virtually prevent the jury from finding that the words published, when fairly construed, charged Smull with lustful indulgences not amounting to adultery, and at the same time did virtually prevent 'the jury from finding that Smull had been guilty of adultery — in other words, appellant complains that the jury was practically precluded from finding that Smull was guilty of the things charged in the libel. But it will not lie with a libelant to select one of several constructions that may be fairly given to the words used, and then prove the truth of the libel when so construed; but he must be ready to prove the truth of the libel when the words used are given any fair and usual construction, as it must be presumed that they will be so taken and construed by at least a part of their readers. Moreover, for reasons hereinafter stated, it was immaterial whether the libel was true or false, and the errors, if any there had been in giving and refusing instructions, were without prejudice. At the common law the truth of a libel was, under no circumstances, a defense to a criminal charge for the publication thereof — in fact it was a maxim of the common law that “the greater the truth, the greater the libel” — the truth could not be proven even in mitigation. This rule prevailed in England as late as the year 1843, when there was enacted Lord Campbell's Libel Act, under which, surrounded by many restrictions and safeguards, a defendant could defend by showing the truth of the libel, and that its publication was for the public good. Without — 378 — legislation, the courts of this country early broke away from the severity of the common law, and we find, as early as the year 1809, the Supreme oCurt of Massachusetts, speaking through its Chief Justice, Parsons, in the case of Com. v. Clap, 4 Mass. 163, 3 Am. Dec. 212, saying: “Although the truth of the words is no justification in a criminal prosecution for libel, yet the defendant may repel the charge by proving that the publication was for a justifiable purpose, and not malicious, nor with the intent to defame any man. And there may be cases, where the defendant, having proved the purpose justifiable, may give in evidence the truth of the words, when such evidence will tend to negative the malice and intent to defame.” This same court, speaking through its then' Chief Justice, Parker, in the case of Com. v. Blanding, 3 Pick. 304, 15 Am. Dec. 215, said: “There are certain cases in which the defendant in a prosecution for libel may acquit himself by showing an honest purpose and proving the truth of his allegations. The general principles upon which such a right depends are stated in the^ case of Commonwealth v. Clap, 4 Mass. 168 [3 Am. Dec. 212], though, without doubt, there are cases, other than those mentioned in the opinion of the court in that case, as illustrations of the general doctrine, in which the same principles will apply. The law, as laid down in the case before cited, has stood before the public nearly 20 years, and successive Legislatures must be presumed.-to have acquiesced in its wisdom and policy, or it would have been altered by the statute. The general principle decided is that it is immaterial to the character of a libel as a public offense whether the matter of it be true or false, not, as some have affirmed, because the law makes no distinction between truth and falsehood, but because the interest of the public requires that men not invested with authority by the laws shall not usurp the power of public accusation, and arraign before the public, with malicious motives, their neighbors and fellow citizens, exposing them to partial trials in forms not warranted by the Constitution or laws, and condemning them to a species of ignominy which is often a heavier punishment than the law would inflict for the offenses or misconduct of which they are thus officially accused. And surely, so long as preventive justice shall be deemed more salutary than vindictive, all wise governments will hold it necessary to curb the — 379 — disposition, always too prevalent, to excite ill-temper and ill-blood by exposing the offenses, faults, or foibles of men, who, if guilty of any violation of law, are amenable to punishment in the ordinary way, and, if liable to censure for private vices, irregularities of temper, or unaccommodating manners, should be left, as the law leaves them, to the correction of conscience, and those silent but powerful punishments which their misconduct itself will supply'. No state of society would be more deplorable than that which would admit an indiscriminate right in every citizen to arraign the conduct of every other before the public in newspapers, handbills, or other modes of publication, not only for crimes, but for faults, foibles, deformities of mind or person, even admitting all such allegations to be true. When the accusation is made by public bodies or officers, whose duty it is by law to detect and prosecute offenses, the charge and the investigation are submitted to, and no spirit of revenge is produced; but if private intermeddlers, assuming the character of reformers, should have the right to become public accusers, and when called to account to defend themselves by breaking into the circle of friends, families, children, and domestics to prove the existence of errors or faults which maj have been overlooked or forgiven where they were most injurious, the man who is thus accused, without lawful process, might be expected to avenge himself by unlawful means, and,duels or assassinations would be the common occurrences of -the times. Instances are recollected where, violence, and even death, has ensued from such proceedings.” [9] The people of the territory of Dakota, enacted into statute the rule adopted by the courts of Massachusetts when they adopted what is now section 318, Pen. Code, supra, and by so doing said to every libelant that the truth of your libels shall be no defense unless you can also show that, in publishing same, your motive was good, and the end you sought justified the means used. The burden is upon the defendant, when he admits the publication-, and defends upon the ground that the libel “is true, and was published with good motives and for justifiable ends,” to prove such defense, and thus overcome the presumption of malice that would otherwise flow from proof of the publication of that which must necessarily tend to injure the good name of another. Com. v. Bonner, 9 Metc. (Mass.) 410. — 380 — [10] Appellant admitted the publication. It must be conceded that the article published might well be construed as charging Smull with indulging in unlawful gratification of sexual passion, and therefore would tend to injure his good name. Appellant, while denying that he intended by the words used -to accuse Smull of adultery, and while claiming that he acted without malice, testified, as his own witness upon direct examination: “When I wrote that article, I meant by the word 'lust’ its general meaning, which is an unnatural craving; it might be for booze, or it might be for women, and various other things, and I used the word with that view.” And upon cross-examination he said of his use of the word “lust”: “I did not figure that it related to a sexual appetite, not especially that; it was an unnatural craving for anything; that was the way I took the word. I did not use the word especially with reference to sexual desire.” It is thus clear that appellant had in mind when he published the libel that the word “lust” meant, among other things, as defined in AVebster’s New International 'Dictionary: “Sensuous desire; bodily appetite; specif., and most commonly sexual desire, as a violent or'degrading passion.” To prove the truth of the libel, appellant put in evidence testimony which, if believed 'by the jury, could but convince them that Smull was a moral pervert — one who 'had been guilty of conduct the most indcent imaginable — one who, if not guilty of adultery upon at least one occasion referred to in the testimony, must have refrained therefrom, not from any sense of shame or duty, but rather because constrained through fear of the physical ills that might result therefrom, or else because prevented through temporary or permanent impotency. What excuse did appellant give for publishing a libel that could only be defended against by dragging into the light of day such a shocking condition? What was there to excuse him for heaping shame and disgrace upon those near and dear to Smull, and who, perchance knowing of his weaknesses., if weaknesses he had, may have thought it best to overlook same? What public benefit could result from such exposures? What possible good motive could there be? What justifiable end? According to appellant’s own testimony, the only motive he had for publishing this libel and the end sought thereby was that he might financially benefit the paper which he was publishing. He claimed that Smull had spread abroad the report that — 381 — the paper was in financial straits; that its circulation was small; ■that it could not run much longer. He also claimed that Smull had endeavored to directly take from his paper certain advertisers, and to procure same for a paper with which Smull was then connected. All of this might justify a publication by appellant of an article placing the responsibility for the financial condition of his paper upon Smull; but the end sought did not justify him in dragging before the public Smull’s frailties and weaknesses, though these frailties and weaknesses were what had led Smull into wasting the assets of the paper. Nothing but a motive to benefit either Smull or the public would furnish any justification therefor; no such motive is claimed, and certainly no such end could possibly result therefrom. Smull occupied no such relation to the public at large as could suggest any benefit to the public from such publications. Appellant professed having no feeling of malice toward Smull, but rather one of pity. His conduct belied his words. [11] Presumptions both of malice and intent to injure flow from what appellant concedes he did — he wholly failed to refute these presumptions — therefore his own admissions convict him of the offense charged. Such being the record, certainly this court should not reverse a judgment so clearly just simply because there may have been some errors committed by the trial court, none of which, however, in any way relates to or could affect these affirmative defenses which appellant was called upon to, but wholly failed to, establish. Section 500, Code Crim. Proc. The judgment appealed from is affirmed. McCOY, J., took no part in this decision.