14 S.D. 72 | S.D. | 1900
It is alleged in the complaint that on October 6, 1898, defendant published of and concerning the plaintiff, who was the sheriff of Clark county, and a candidate for re-election, the following false, scandalous, and defamatory matters: “It is known that Sheriff Boucher is staking his hope of re-election upon obtaining votes through promises of putting men on the jury at the December term of court and afterwards. It is stated upon reliable authority that within the last few days he has approached several republicans, and offered to put them on the jury at the December term of court if they would vote for him. Last week he approached a prominent republican in this county, and offered, if he would vote for him and help elect him this fall, Mr. Boucher and his friends would assist in electing this republican two years from now as sheriff of this county. It is also generally understood that Mr. Boucher obtained delegates in some of the townships by pledging men he placed on juries and in other positions at the last term of court to attend the caucuses in their townships and vote for delegates who would work for him for sheriff. Mr. Boucher has always been profuse with this class of promises, and he may be able to fool some people with them this year, but he has promised twenty persons where he can perform with but one.”
In discussing the issues involved in this action, it should be con
Defendant’s objection to the introduction of any evidence, on the ground that the complaint does not state facts sufficient to constitute a cause of action, was overruled. Respondent concedes that, as no special damage is pleaded, the complaint is fatally defective, unless the language employed by defendant is libelous per se. Assuming, as counsel seemed to, that the statutes of this state relating to slander and libel prescribe no rules for determining what language is in itself actionable, resort will be had to the common law in deciding whether actual injury should be presumed in this case. There is abundant authority for the following statement: “ Any publication which imputes to a person the commission of a criminal offense, which will, in case the imputation or charge is true, subject the party charged to. punishment for a crime involving moral turpitude, or subject such party to an infamous punishment, is actionable in itself, when published orally, and hence, when expressed otherwise than by oral language, is a libel.” Newell Defam. 67. While language not embraced in the foregoing might be libelous per se, it is confidently believed that any publication which falls clearly within the terms of this definition should be regarded as prima facie actionable. An act to preserve the purity of the ballot, and to punish crimes committed against the elective franchise, passed in 1891, contains the following:
“Section 1. It shall be unlawful for any person, directly or indi
“Sec. 7. Whoever shall violate any of the provisions of this act shall, upon conviction thereof, be punished by imprisonment in the county jail for not less than three (3) months nor more than one (1) year. The offenses described in Sections one (1) and two (2) of this act are hereby declared to be infamous crimes. When a person is convicted of any offense mentioned in sections one (1) and two (2) of this act, he shall in addition to the punishment above described, forfeit any office to which he may have been elected at the election vdth reference to which such offense was committed, and shall in addition be excluded from the right of suffrage for a period of five (5) years after such conviction, and it shall be. the duty of the county auditor or county clerk of the county in which such conviction shall be had to transmit a certified copy of the record of conviction to the au•ditor or clerk of each county in this state within ten (10) days thereafter, which said certfied copy shall be duly filed by the said county' auditor or clerk in their respective offices.” Laws 1891, Chap. 58 §§ L 7-
Without considering whether the legislative declaration as to the character of the crimes defined in this statute is conclusive upon the courts, or the power of the legislature to impose the punishments prescribed therein, we have no hesitancy in holding that the offense defined in the second paragraph of the first section is one involving moral turpitude. “'Everything done contrary to justice, honesty, modesty, or good morals is said to be done with turpitude.”
Before the trial began the court, on motion of the plaintiff, struck out certain paragraphs of defendant’s first amended answer as sham, irrelevant, and redundant, to which ruling the defendant duly excepted, whereupon, by order of the court, defendant filed its last amended answer. It is contended that the court erred in striking out these portions of defendant’s first amended answer. The question is not before us, for the reason that after the motion had been allowed by the court the defendant filed an amended answer. This was a waiver of all questions touching the former answer, and of the rulings of the court in relation thereto. Hexter v. Schneider, 14 Or, 185, 12 Pac. 668; Gale v. James, 11 Colo. 540, 19 Pac. 446; Gale v. Foss, 47 Mo. 276; Wells v. Applegate, 12 Or. 208, 6 Pac. 770; Kentfield v. Hayes, 57 Cal. 409.
The court having overruled defendant’s objection to the introduction of any evidence, the plaintiff testified-that he resided at Clark, and was sheriff of Clark county, and the person designated as “Sheriff Boucher” in the article referred to in his complaint. Thereupon defendant admitted that the plaintiff was the duly elected, qual
Should defendant’s motion to direct a verdict have been sus