Rector v. Smith

Baldwin, J. There is but one question presented for our determination in this case, and that is, whether the defendant can plead in justification of the publication of libellous matter concerning the plaintiff as county judge, that when such libel was published the defendant was acting as a grand juror; that the matter charged as libellous was a privileged communication made by him as a juror to the court. The communication thus claimed by defendant as privileged, •charges the plaintiff with willful and corrupt misconduct as a county officer, which is an indictable offense. •It is made the duty of the grand jury when they find that an indictable offense has been committed within their county, to pres'ent the same by indictment. See Code, section 2897- By section 2992 it is made the special duty of the [307] grand jury to inquire into the matters specified in the four subdivisions of this section. It is under the provisions of this section that the defendant claims that the law authorized and justified him in presenting to the court, as a grand juror, the report in regard to the actions of plaintiff as county judge. The grand jury have no power, nor is it their privilege or duty to present any person for a criminal offense except by indictment. If the misconduct of an officer does not amount to a crime, and is not of such magnitude as will justify the jury in finding an indictment, their powers over the offense complained of, are at an end. It is claimed that by section 2992 of the Code, the grand jury have the power to report otherwise than by indictment upon the subjects named in the subdivisions of this section. And this construction is claimed upon the ground that the second subdivision particularly contemplates a report by the grand jury, and that if a report can be made upon one of the subjects, the consideration of which is thus specially enjoined upon the jury, that a report may be made upon each of the subjects named in this section, or at least they can report upon the condition of the prison and upon the conduct of county officers. An indictment may be presented under each of those subdivisions. Should there be a person imprisoned in the county, it is made the special duty of the jury to inquire into the offense charged, so that the criminal may be brought to speedy trial. Should there have been a wilful neglect of duty by the keepers of the prison, they are liable to be indicted for such willful neglect. . There can be no question as to the power of the grand jury to indict under the other two subdivisions. A report by a grand jury, presents nothing upon which the court can act, unless it is in reference to the condition of the prison. The court can take no jurisdiction over the complaint charged by such report. Nor can a person thus presented have an opportunity to show himself innocent of the matters complained of. With this view [308] of the question we conclude that the report presented by defendant as a juror, was not a privileged communication, and that he can not plead this in bar of plaintiff's right to recover. The defendant, however, in his answer denies all malice in this publication, and avers that it was made in the discharge of a public duty, and in good faith. If the publication was made without malice, and as the defendant supposed in the discharge of a public duty, and without any ill will or hatred toward the plaintiff, we are of the opinion that plaintiff• ought not to maintain his action. Chief Justice Shaw, in the case of Bradley v. Heath, says: “Where words imputing misconduct to another, are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the discharge of that duty, * * * no presumption of malice arises from the speaking of the words, and therefore no action can be maintained in such cases without proof of express malice. If the occasion is used merely as a means of enabling the party to utter the slander, to indulge his rgalice, and not in good faith to perform a duty, * * the occasion will furnish no excuse.” 12 Pick. 162. With this view of the case we think the court did not err in overruling the demurrer. Judgment affirmed.