Grantham v. Wilkes

Smith, C. J., delivered the opinion of the court. The appellees are the owners and publishers of a newspaper known as the Daily Herald, and are sued herein by the appellant for libel on a declaration alleging that they “published in the said newspaper owned by them as aforesaid, to-wit, the Daily Herald, with the circulation aforesaid, willfully, wantonly, maliciously, and falsely, the following publication of and concerning the plaintiff, B. F. Grantham, to-wit, Ghat the said Jeff Lacy was convicted entirely upon the testimony of one B. F. Grantham, which said testimony was unreliable, untrustworthy, and indicated very clearly that Grantham, in order to shield himself and to avoid prosecution for stealing two (2) cows which Lacy was charged with stealing, had to testify against said Jeff Lacy, and had to allege in his testimony that the said Lacy had stolen the said two cows.’ ” One of the appellees’ pleas to this declaration alleges that the publication set forth in the declaration was part of a petition for a pardon for Jeff Lacy who was then serving a sentence in the state penitentiary on a conviction of grand larceny, and was published by the appellees for Lacy in good faith and without malice toward appellant. A copy of this petition was filed as an exhibit to the plea, and it appears therefrom that it was signed by a number of persons, but not by Lacy himself. A demurrer to this plea was overruled, whereupon the appellant by replication challenged the appellees’ good faith and want of malice in publishing the petition. A demurrer to this replication was sustained, and, the appellant having declined to plead further, his cause was dismissed, from which judgment he has appealed to this court. Section 124 of the Constitution requires all petitions for the pardon of a felon to be published, and chapter 106, Laws of 1916, by which the pardoning board was created, [784] requires all petitions for a pardon; irrespective of the grade of the offense committed by the person for whom the pardon is desired, to be published before the pardon therein prayed for can be granted. The question presented for decision is whether the petition for the pardon of Lacy was a privileged communication, and, if so, to what extent. “A privileged communication is one containing matter which but for the occasion on which it is made would be defamatory and actionable,” and may be divided into two classes: “The absolutely privileged, and the conditionally or qualifiedly privileged.” 17 R. C. L. 328. An absolutely privileged communication is one made in the interest of the public service or the due administration of justice (25 Cyc. 276; Newell on Slander and Libel [2 Ed.], 418), “and is practically limited to legislative and judicial proceedings and other actions of state.” 17 R. C. L. 330. “A communication made in good faith on any subject-matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or socjal duty of imperfect obligation.” 17 R. C. L. 341; 25 Cyc. 385; Sands v. Robison, 12 Smedes & M. 704, 51 Am. Dec. 132. The public interest in a petition for a pardon is not such as to bring it within the rule of absolute privilege, but the interest of the petitioner therein, and the fact that it is required by law to be published before the pardon therein prayed for can be granted, bring it manifestly within the rule of qualified privilege. But it is said by counsel for appellant that, conceding that the petition for a pardon is within the privilege rule, the privilege extends only to the publication of a petition signed by the person for whom the pardon is sought. In support of which they refer to the re [785] quirement of section 124 of the Constitution that the applicant for a pardon shall publish his petition therefor. This section of the Constitution does not expressly require a petition for a pardon to be signed by the person for whom the pardon is requested, nor is such a requirement necessarily implied by the use of the words “his petition,” for when signed and presented for the petitioner by others it becomes as much his petition as if he had signed and presented it himself. Moreover, chapter 106, Laws of 1916, does not require the applicant for a pardon to publish his petition therefor, but simply requires “the application therefor” to be published. The court below committed no error in overruling the demurrer to the appellee’s plea to the declaration, but, since the replication to this plea challenged the appellee’s good faith in publishing the petition, the demurrer to the replication should have been overruled. Reversed (Mid remanded.