113 Ky. 383 | Ky. Ct. App. | 1902
OrixioN ok tiie court by
Reversing.
This notion was brought, by appellant for libel, in publishing of and concerning appellant 'the following article in iho Kentucky Post newspaper:
“Took a Horse — Elsinore is in, a State of Excitement— Charge is Preferred against the Town Marshal. The little town of Elsmere, south of Erlanger, is in a state of great excitement over a technical charge of horse stealing preferred against Joseph Beiser, the town marshal, by Adam*386 Gull), one of the town’s best-known citizens. Monday, Guth went before Squire Childress and alleged that the marshal had, without reason, taken his horse and put it in the pound, for the purpose of obtaining the $1.00 fine put on owners whose horses run at large. Guth alleges that his horse was not running at large, but that it was taken from his yard early Monday morning, where it was grazing. Mr. Guth was very indignant over the affair, and he claimed to the court that it was a common' practice to take horses from pastures and put them in pound. When the case is tried before the squire the whole town will' turn out to watch the proceedings. Marshal Beiser, in emphatic language, denies that he took the horse from the yard.”
The answer of the company admitted the publication, but denied that it was false or malicious. In the third paragraph it pleaded that it employed careful and diligent reporters, and enjoined them to exercise great care as to the truthfulness of statements published, and to refrain from all unjust and malicious statements. In the fourth paragraph it pleaded the truth of the article; that Beiser was town marshal, as therein stated; that Guth made to the magistrate the charges therein set forth; that the town was in a state of great excitement oven1 the charge, and that Beiser did deny it; and that *the publication did not, and was not designed to, approve the charge made by Guth, but merely to set forth the contention of the parties with respect thereto. The fifth paragraph set up that Squire 'Childress was a justice of the peace, and that the article was merely a fair report of a complaint preferred before him, and was privileged.' The sixth paragraph averred that Beiser, as town marshal, was a public officer, wdiose official conduct was a matter of legitimate1 public concern, and the fact of the charge preferred by one of the citizens
After a jury was impaneled and the case stated, Beiser moved the court to adjudge the burden of proof, and, though requested by the court, declined to make his motion more •specific. The publishing company then moved that the
After the ruling upon the burden of proof, Beiser introduced the magistrate, who testified that Gutli appeared before him and made the charge set out in the article; that, at Guth’s request, he prepared an affidavit for the arrest of Reiser, but that it was never signed or sworn to; that
The question whether a mere application to a justice of 'the peace for a warrant of arrest constitutes the statement of the would-be prosecutor to the magistrate a' privileged matter, a fair and impartial publication of which is not libelous. does not seem to have been anywhere expressly decided. The courts of justices of the peace are undoubtedly a part of the judicial department, of the government of the Common-wealth. Const., sections 109, 142. The magistrate had jurisdiction to entertain Guth’s complaint, and, upon affidavit properly made, to issue the warrant which Guth seems to have applied for. Cr. Code, section 26. The complaint, so far as the evidence shows, wras made to the magistrate in his official capacity as justice of the peace. It is conceded by appellee that, according to the earlier cases, cx parte proceedings before inferior tribunals, and, indeed, preliminary hearings of charges, were not considered to be of a character which entitled their publication to be considered privileged. Gazette Co. v. Timberlake, 10 Ohio St., 549, 78 Am. Dec., 285; Duncan v. Thwaites, 3 Barn, & C., 556; Rex v. Lee, 5 Esp., 123; Huff v. Bennett, 4 Sandf., 703; Townsh. Sland. & L. p. 364, note 5. On the other hand, it is admitted by appellant that the later current of opinion in both England and this country is to the
Nevertheless, for the error in adjudging the burden of proof, we think the judgment must be reversed, and cause .remanded, with directions to award appellant a new trial, and for further proceedings consistent herewith.