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be found the following statements of the conceal the truth, or had in any manner or rule in question, supported by abundant form interfered with the due administration authority:

of justice in the court in which the case was “Where a decree has not been enrolled, or pending, we would have no doubt of the where it is subject to modification upon right of the court, in which the case was motion, or where the court might grant a pending, to proceed against him in the sumrehearing, or where an appeal might be mary manner adopted by Judge Field in taken, or where the costs had not been taxed, this case.” or where no execution had issued, it not For one to commit, as was done by the being in condition to issue execution, appellant in this case, an assault and batthe case could not be said to have reached tery upon the witness as a punishment for that stage where it could be said it was not giving testimony against him in an action pending in that court. Re Chadwick, 109 or criminal prosecution then pending, though Mich. 588, 67 N. W. 1071; Fishback v. State, in part disposed of, or as a means to intimi. 131 Ind. 304, 30 N. E. 1088; Bloom v. Peo date him and influence his testimony ex. ple, 23 Colo. 416, 48 Pac. 519.

pected to be given in the future trial of an “A petition of which judgment has been action or criminal prosecution then pendfinally pronounced, but on which the order ing, is a criminal contempt, because such has not been drawn up, is a 'pending pro- conduct is as much an interference with the ceeding.' Ex parte Turner, 3 Mont. D. & authority and dignity of the court, and an De G. 523."

obstruction of justice, as would be the inIn Melton v. Com. supra, Melton, a phy- timidation or bribery of a witness, or any sician, in contemplation of a suit to be contempt committed in the presence of the instituted by a party to recover damages court. The evidence clearly proves appelfor personal injuries sustained by the al- lant's guilt of such a contempt; and, this leged negligence of another, pretended to being true, it was within the power and treat the party in a professional way for jurisdiction of the court to proceed against the purpose of manufacturing evidence that him by rule and summarily try him, as was would sustain the action that was soon done in this case. It is equally manifest thereafter brought, when he knew such that the power of the court was inadequate party was not injured. We held that al- to the infliction of such punishment as the though such conduct upon his part was a contempt of appellant deserved. Therefore common-law misdemeanor, because of its it was proper to submit the matter to the obstructing justice, for which he might have determination of a jury. As said in French been proceeded against by warrant or indict. v. Com. 30 Ky. L. Rep. 98, 97 S. W. 427: ment, he was not guilty of contempt, be- “We have in this state no statute defining cause the action in which he attempted to contempt. There is a statute limiting the manufacture evidence was not an action power of the court as to the infliction of pending in court. After defining the distinc punishment for contempt; but, if in the tion between acts which constitute the com- opinion of the court the contempt is one mon-law misdemeanor of obstructing justice demanding greater punishment than lies in and those which constitute criminal con- its power to inflict, it may have a jury to tempt, it is in the opinion said:

hear the truth of the matter, and leave it "In thus speaking, we do not undervalue to them to inflict such punishment as they the importance of protecting courts or of may deem commensurate with the offense. keeping pure the administration of the law; As in any other case of trial by jury, their nor do we think what we have said limits verdict will not be disturbed, unless flain any manner the power courts have al. grantly against the evidence, or the result ways possessed to punish, as for contempt, of passion or prejudice. There is nothing persons who were guilty of contempt, as it here to indicate passion or prejudice on the has been always defined. When a court has part of the jury.” full power and authority to protect its dig. The further contention of appellant that nity, enforce its processes, discipline its of the court erred in instructing the jury is ficers, and punish those who would impede without merit. Instruction No. 1 appears or bring into disrepute the administration to be the only one objected to. That inof justice in a pending case, it has all the struction, in substance, told the jury that, authority that is needed to be exercised in order to find the appellant guilty of the through contempt proceedings, and other contempt charged, they must believe from offenses should be left to be disposed of in the evidence, beyond a reasonable doubt, the ordinary way. If there had been a suit that the assault and battery committed pending in the Jefferson circuit court, and upon Cook was done to intimidate him as a Melton had attempted to manufacture evi- witness in the case then pending, or to pundence in this suit, or had endeavored to per ish him for testifying in the case theresuade a witness to give false evidence or' tofore recently tried. It is insisted for


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appellant that the alleged error in this in- , ishment of crime and the enforcement of struction was in its advising the jury that law lies in the inability of the courts and they might find appellant guilty if his mo- prosecuting officers to procure the testimony tive for committing the assault and battery of witnesses having knowledge of the facts was to punish Cook for testifying in the upon which the conviction of violators of case just tried. Obviously this contention the law may be secured. This, in most inrests upon the ground that, if the assault stances, is due to the intimidation or bribwas committed from the motive last men- j ery of witnesses. It is therefore the duty tion, it would not constitute a contempt, of the court to protect witnesses from evilly in the meaning of the law. This we have disposed persons who resort to such means already answered by stating in the opinion of suppressing evidence; and this cannot that, as the case tried must be regarded as better be done than by bringing them to pending in court at the time of the commis- speedy trial and certain punishment; and sion of the assault, the assault, if com- where, as in a case like this, the evidence mitted by way of punishment for the testi- unerringly establishes the guilt of the conmony given by Cook therein, was as much a temner, and there is nothing to be urged in contempt as if it had been committed for mitigation of the contempt, it would be a the purpose of intimidating Cook as a wit. miscarriage of justice to set aside the verness in a future trial to be had of the other dict, unless for error so prejudicial in char. indictment, which had been continued to i acter as that it prevented the accused from the succeeding term of the court.

receiving a fair and impartial trial. It is also insisted for appellant that he The judgment is affirmed. did not actually know that Cook had been subpænaed as a witness in the continued case. In our opinion it is not material

KENTUCKY COURT OF APPEALS. whether appellant had knowledge of a subpæna having been served on Cook in that

H. D. SMALLWOOD, Appt., It is manifest that he knew Cook was a prospective witness in the continued

J. M. YORK. case, as his name appears upon the indictment as a witness for the commonwealth,

(163 Ky. 139, 173 S. W. 380.) and appellant, being in court on that indictment, must be presumed to have knowl. Slander privilege statement in edge of what it contained, not only as to court. the offense charged, but as to the witnesses

1. A statement by an attorney in open for the commonwealth, whose names appear turned in a verdict which they knew to be

court that the jury in another case had upon the back thereof. Moreover, as Cook was the most important witness for the wrong is not privileged.

Same charging return of wrong vercommonwealth in the other two cases and

dict actionability. bad testified in each, which was of course known to the appellant, who was himself verdict which he knew to be wrong is not

2. To charge a juror with returning a present at each of the trials, it is reason actionable per se. ably certain that he knew of the importance Same office juror. of his testimony to the commonwealth in

3. The position of juror is not an office the continued case.

or employment within the rule that it is Appellant's final contention, that the pun- slanderous to impute unfitness to perform ishment inflicted by the verdict is excessive, the duties of an office or employment. cannot be sustained. In view of the nature i of the contempt committed by appellant

( February 25, 1915.) and the aggravating circumstances attend. Note. Libel and slander: imputing ing its commission, no reason is apparent misconduct to judicial officer or juror. for regarding the punishment inflicted by the jury greater than his conduct deserved.

Generally. In French v. Com. supra, the judgment in

The purpose of this note is to consider flicting a fine of $5,000 upon the appellant what constitutes a libel or slander of a was affirmed by this court. We find in this judicial officer in that capacity for which an case nothing to indicate that the jury, in action for damages may be maintained; and reaching a verdict, were influenced by pas- while a few cases of libel or slander not sion or prejudice, and, in the absence of touching such person in his office have been such a showing, no reason is apparent for included in this note, it is not intended to

exhaust such cases. Neither is this note disturbing the verdict. Every judge at all familiar with the conduct of criminal prose of such officer, in which connection see notes

concerned with the question of criminal libel cutions in this state has seen that one of cited in $$ 6, 7, Contempt, Index to L.R.A. the chief difficulties in the way of the puno notes, 252.

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PPEAL by plaintiff from a judgment of If a party desires to plead privileged oc-

the Circuit Court for Pike County in casion he must admit speaking the words. defendant's favor in an action brought to Edwards v. Kevil, 133 Ky, 392, 28 L.R.A. recover damages for an alleged slander. Af- (N.S.) 551, 134 Am. St. Rep. 463, 118 S. firmed.

W. 273. The facts are stated in the opinion.

The communication of litigants, counsel, Mr. J. E. Childers, for appellant: and witnesses are conditionally privileged. The language sued was actionable Morgan v. Booth, 13 Bush. 482; Tanner

v. Stevenson, 138 Ky. 578, 30 L.R.A. (N.S.) Spears v. McCoy, 155 Ky. 1, 49 L.R.A. 200, 128 S. W. 878. (N.S.) 1033, 159 S. W. 610; Byers v. Mar- Messrs. Hobson & Hobson, for appellee: tin, 2 Colo. 605, 25 Am. Rep. 755, 25 Cyc. The statements of counsel are absolute352.

ly privileged. It imputes to plaintiff unfitness to per- Henderson v. Broomhead, 4 Hurlst. & N. form the duties of an office and employ- 577, 28 L. J. Exch. N. S. 360, 5 Jur. N. S. ment.

1175, 7 Week. Rep. 492; Munster v. Lamb, Kemper v. Fort, 123 Am. St. Rep. 650, L. R. 11 Q. B. Div. 588, 52 L. J. Q. B. N. S. note.

726, 49 L. T. N. S. 252, 32 Week. Rep. 248,

per se.

For many valuable notes on the general See Earle v. Johnson, 81 Minn. 472, 84 subject of libel and slander, see “Libel and N. W. 332, holding that the alleged words Slander," Index to L.R.A. Notes, 840. charged an appraiser of real estate with

As regards language concerning one in crime, and were slanderous per se. office, the same general principles apply as to language concerning one in a trade.

Judge-libel. Language concerning one in office, which imputes to him a want of integrity or mis- Quoting from Newell on Libel & Slander, feasance in his office, or a want of capacity, the court in Dixon v. Chappell, infra, said: generally, to fulfil the duties of his office, or “Defamatory words falsely spoken of a which is calculated to diminish public confi- person, which impute to the party unfitness dence in him, or charges him with the to perform the duties of an office, or embreach of some public trust, is actionable. ployment of profit, or the want of integrity Spiering v. Andræ, infra.

in the discharge of the duties of such an ofTo say of a commissioner for the examina-fice or employment, are actionable in themtion of witnesses that he has taken bribes to selves without proof of special damages.” favor one of the parties is actionable. In Dixon v. Chappell, 133 Ky. 663, 118 S. Moor v. Foster, Cro. Jac. 65.

W. 929, the court said: "In the article beAnd in Lansing v. Carpenter, 9 Wis. 540, fore us it is charged that justice has been 76 Am. Dec. 281, the substance of the al- outdone, overruled by sleight of hand; that leged libelous charge published in a news it is a matter of self-exposure, self-ignopaper was that

was expected that the rance, bad recollection, no bookkeeping, or plaintiff as court commissioner would dis- downright graft on the part of the county charge, habeas corpus, all persons who officials; that when things go wrong the might be committed by the legislature for county judge has a very bad memory, and refusing to testify, merely to subserve the his graft continues to extract money from views of other parties, whose tool and toady the taxpayers' pockets. The natural meanthe plaintiff was, and that the writer of the ing of this is that the misuse of the county article considered him “a fit tool for such money is due to ignorance, bad recollection, purposes,” etc., and that “whatever he no bookkeeping, or downright graft on the might do in the future, the past would part of the county officials, and that the warrant the depriving him of his office." county judge has both a bad recollection, Such imputations made against an oflicer, and by graft continues to extract money it was held, have natural tendency, so far as from the taxpayers' pockets. The word the influence of the press extends, to di- 'graft' has a well-defined popular meaning at minish public confidence in his official in this time. It means the fraudulent obtaintegrity, and thus injure him in the business ing of public money unlawfully by the of his office, and are actionable within the corruption of public officers. It is constantrule relating to words spoken of a man in ly so used in the daily press, and is thus his trade or profession.

defined in Clarkson's American Dictionary: It is settled that an action for libel may 'The act of anyone, especially an official or be sustained for words published which tend public employee, by which he procures to bring the plaintiff into public hatred, money surreptitiously by virtue of his office contempt, or ridicule, even though the same or position.' 'Grafter' is thus defined: “A words spoken would not have been action- dishonest official.' The charge touches the able. Ibid.

county judge in his office. To charge an ofTo accuse one in open court with having ficial with graft is to charge him with want perverted justice is actionable. Seignior de of integrity. The article in question, if la Ware v. Pawlet, F. Moore, 409. It does true, would necessarily destroy the respect not clearly appear in this case who the of the people of Leslie county for the county plaintiff was.

judge. Its necessary tendency was to de



any crime.

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47 J. P. 805, 7 Eng. Rul. Cas. 714; Sebree Townshend, Slander, 142; Spears v. Mcv. Thompson, 126 Ky. 223, 11 L.R.A. (N.S.) Coy, 155 Ky. 1, 49 L.R.A. (N.S.) 1033, 159 723, 103 S. W. 374, 15 Ann. Cas. 770, 775, S. W. 610. note; Tanner v. Stevenson, 138 Ky. 578, 30 The words do not tend to deprive SmallL.R.A. (N.S.) 200, 128 S. W. 878.

wood of any office, or to injure him as an Under the rule of conditional privilege, officer. statements of counsel which he believes to Words spoken of a juror are not actionbe pertinent are not actionable.

able per se, as spoken of an officer. Stewart v. Hall, 83 Ky. 375; Morgan Townshend, Slander, 184; . Robbins

Booth, 13 Bush, 480; Forbes v. Treadway, 2 J. J. Marsh. 540, 19 Am. Dec. Johnson, 11 B. Mon. 48; Gaines v. Ætna 152. Ins. Co. 104 Ky. 695, 47 S. W. 884; Mon- The words to injure an officer must be roe v. Davis, 118 Ky. 806, 82 S. W. 450; spoken of him while he holds the office. Kemper v. Fort, 219 Pa. 85, 13 L.R.A. (N.S.) Townshend, Slander, 189; 25 Cyc. 347, 820, 123 Am. St. Rep. 623, 67 Atl. 991, note 78; Russell v. Anthony, 21 Kan. 450, 12 Ann. Cas. 1022.

30 Am. Rep. 436; Jarman v. Rea, 137 Cal. The words do not charge Smallwood with 339, 70 Pac. 216; Forward v. Adams, 7

Wend. 204; Allen v. Hillman, 12 Pick. 101; grade him in public estimation, for no one natural defects of anyone and thereby excould regard him as a capable and upright pose such person to public hatred, ridicule, official who believed the statements of this or financial injury,” as it tends to injure article to be true. The publication was the reputation of such judge by exposing therefore actionable per se, and the circuit him to contempt and ridicule. Blum v. court erred in sustaining the demurrer to Kusenberger,

Tex. Civ. App. 158 S. the petition.”

W. 779. A publication to the effect that an A publication in the form of an affidavit semblyman, a lawyer, passed a bill raising directly charging the plaintiff in his juthe salary of a county judge as the agent of dicial capacity, with a wilful refusal to the judge, and that the assemblyman was perform a legal duty, and indirectly chargrewarded for such act by the principal by ing that such refusal was from corrupt appointment as referee, etc., while not notices; and fairly charging a betrayal of charging the judge with bribery within the confidential communications to an alleged legal definition of that crime, is calculated criminal for the purpose of shielding him, to degrade his character and impeach his in- and by insinuation charging that plaintiff tegrity as a judge, and injure him in the was privy to a corrupt agreement, whereby, public estimation, and is libelous. Hickey for a money consideration, protection was v. Corson Mfg. Co. 58 Misc. 70, 108 N. Y. extended to law violators,- is defamatory Supp. 884, aflirmed without opinion in 127 and actionable. Lauder v. Jones, 13 N. D. App. Div. 946, 111 N. Y. Supp. 1123. 525, 101 N. W. 907.

A publication susceptible of the innuendo The method by which a public officer conthat a judge correctly entered into partner- tinues to retain his hold on a public office ship while holding offices of public trust, is as much a matter of public concern, as and thereby unlawfully acquired large sums much subject to public criticism, as the of public money, is libelous. Higgins v. method by which he originally obtained, or Walken, 17 Can. S. C. 225.

sought to obtain, the office. If he resorted A newspaper article referring to a county to a dishonorable trick, it is proper to pubjudge by name and as “Czar," and charging lish the fact. Everyone has a right to comhim with threatening the proprietor of the ment fairly, and with an honest purpose, on paper with personal violence, warning him the conduct of public officials. And so of that “his presence would not be tolerated the conduct of a municipal judge. Wilcox around the official throne of the County v. Moore, 69 Minn. 49, 71 N. W. 917. Czar," and using language which would not In Royce v. Maloney, 58 Vt. 437, 5 Atl. do to print, and stating that the paper will 395, where it was alleged that the plaintiff's not submit to the "tyranny and bulldozing son was a lawyer, practising in the courts, methods of a self-constituted Czar without and that the meaning of the words comraising, an objection;" that it could cite plained of was that the plaintiff was in coother instances equally unjust; and that partnership with his son in the law business, the public has a right to demand courteous receiving compensation from parties to suits treatment from its public servants,-is in his court brought his son as attorney, libelous within art. 5595, Rev. Stat. 1911, “What the Gazette wants to know: When defining a libel as "a defamation expressed Judge Royce and his son will dissolve in printing or writing, or by signs and pic- partnership?”—was held in the light of the tures or drawings, tending to blacken the prefatory averments to amount to a charge memory of the dead, or tending to injure of misconduct in office, and so libelous it the reputation of one who is alive, and not true. thereby expose him to public hatred, con- A publication that charges a judge with tempt, or ridicule, or financial injury, or being destitute of the capacity and attainto impeach the honesty, integrity, or virtue, ments necessary for his station, or that he or reputation of anyone, or to publish the openly abandoned the common principles of Windsor v. Oliver, 41 Ga. 538; Dicken v. Carroll, J., delivered the opinion of the Shepherd, 22 Md. 399; Oram v. Franklin, court: 5 Blackf. 42; Edwards v. Howell, 32 N. The plaintiff, who is the appellant here, C. (10 Ired. L.) 211; Newell, Slander, p. brought suit against the defendant, now 175.

appellee, to recover damages for an alleged No misstatement of facts is complained slander. The defendant is an attorney at of; comment on admitted facts is not ac

law, and the petition charged that in the tionable.

courthouse, while making the opening stateMacauley v. Elrod, 14 Ky. L. Rep. 525; spoke of and concerning the plaintiff the

ment in a case, he falsely and maliciously Tharp v. Nolan, 119 Ky. 870, 84 S. W. following words, to wit: “In this case the 1168; 25 Cyc. 347, note 76; Davis v. Shep. only question is whether a corporation can stone, L. R. 11 App. Cas. 190, 55 L. J. P. C.

get justice in Pike county. No longer N. S. 51, 55 L. T. N. S. 1, 34 Week. Rep. than yesterday I heard a case tried in this 722, 50 J. P. 709; St. James Military Acad-court of Carl Massy against the Allegheny emy v. Gaiser, 28 L.R.A. 667, note; Sillars Coke Company and John Fuller, in which v. Collier, 151 Mass. 50, 6 L.R.A. 680, 23 the jury turned in a verdict under their N. E. 723.

oaths against the Allegheny Coke Company truth, or that he sold, directly or indirectly, And words charging a judge with using the appointment of clerk, is libelous. Rob- undue influence and violating his oath, for bins v. Treadway, 2 J. J. Marsh, 540, 19 which he ought to be removed from office, Am. Dec. 152.

were held actionable in Hook v. Hackney, But opprobrious words spoken of a judge 16 Serg. & R. 385, without colloquium or are not libelous. Ibid.

innuendo. A publication charging a judge with im- One said that my Lord Chief Baron canproprieties, which would be no cause of im- not hear of one ear colloquio præhibito of peachment or address, is no more actionable his administration of justice; and it was than if made against a private citizen. Ibid. adjudged actionable. Alleston v. Moor, This is the law even of England. It must Het. 167 (dictum). It would have been be so in this land of republican equality. otherwise if they had said nothing of his Ibid.

justice. Ibid. In Tappan v. Wilson, 7 Ohio, pt. 1, p. 191, And it seems that to say of an admiralty it does not seem that the publication which judge that a sentence was corruptly given was held not libelous was made concerning by him is actionable. See Cæsar v. Curseny, the plaintiff as judge.

Cro. Eliz. pt. 1, p. 305.
In Briggs v. Garrett, 111 Pa. 404, 56 Am.
Rep. 274, 2 Atl. 513, the alleged libel was

Justice of peace-libel. published concerning a judge as a candidate for re-election, and the case is concerned A newspaper account describing what pur. chiefly with the question, in what manner ported to be a scene between a justice of the and to what extent the fitness a candi- peace and a prisoner, in which the justice, date for a public office may be discussed by aroused to anger by the prisoner's disthe people, whose votes may elect or defeat respect, left the bench and violently assaulthim.

ed the prisoner, wag libelous per se. O'Leary Ames v. Hazard, 6 R. I. 335, subsequent v. New York News Pub. Co. 51 App. Div. 2, appeal in 8 R. I. 143, was an action for 64 N. Y. Supp. 327. Against the conclusion libel against the plaintiff in his office of of the trial judge that the language of the chief justice of the supreme court of Rhode publication was not so actionable, the court Island, and reporter of its decisions. The said: “The publication charged the plain. case, however, decides nothing peculiar to tiff, while in the exercise of his functions as cases of the type now under consideration, a justice of the peace, with having combeing concerned with the sufficiency of a mitted an assault upon a prisoner who stood plea attempting to justify the alleged libel arraigned before him. The fact that the complained of. And see in the same con- prisoner had treated him with derision was nection Royce v. Maloney, 57 Vt. 325, 58 Vt. no justification for a personal attack by the 437, 5 Atl. 393. And see also Harris v. plaintiff, nor was such attack justified or Lawrence, 1 Tyler (Vt.) 156; Harris v. excused by the fact that the prisoner started Huntington, 2 Tyler (Vt.) 129, 4 Am. Dec. | to leave the room. According to the 728; Culver v. Van Anden, 4 Abb. Pr. 375; article, the constable who had brought the Van Ness v. Hamilton, 19 Johns. 349; Per prisoner to court was present throughout ret v. New Orleans Times Newspaper, 25 the entire altercation, and nothing is stated La. Ann. 170; Turrill v. Dolloway, 17 Wend. in the article disclosing the slightest neces426, subsequent appeal in 26 Wend. 383. sity of any effort on the part of the justice -slander.

to detain the prisoner. On the contrary, the

action attributed to the plaintiff by this To say of one that he has been a corrupt publication, if not palliated by facts which judge and justice, and has taken bribes of do not appear in the published statement, many persons, is actionablé. Pepper v. Gay, would warrant the removal of the justice Lutw. pt. 2, p. 538.

from office. In slander, it is a general rule

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