139 P. 474 | Ariz. | 1914
The sufficiency of the information to-charge, and the sufficiency of the evidence to support, the publication of the alleged libel is made a ground of error.' The information charges that the appellant, P. D. Gardner, “ ... on or about the fifteenth day of August, A. D. 1912, . . . willfully, knowingly, feloniously, unlawfully, and with a malicious intent to injure one J-e B-s, . . . did publish a certain libel of and concerning said J-e B-s by directing and sending through the United States postoffice a certain envelope containing a certain libelous letter to one Emma Kirtland at Salford, Arizona, which said libelous letter was received by said Emma Kirtland; that said P. D. Gardner by sending said libelous letter as aforesaid to Emma Kirtland' and parting with same did cause said libelous letter to be seen by said Emma Kirtland and numerous persons other than P. D. Gardner.” The last clause of the charge quoted is unnecessary to the allegation of the fact of publication of the libel, and may be considered mere surplusage.
The allegation of the fact of publication is satisfied by the words “did publish a certain libel of and concerning said J-e B-s.” The particular circumstances of the manner of publication are sufficiently set forth by the words “by directing and sending through the United States postoffice a. certain envelope containing a certain libelous letter to one Emma Kirtland at Salford, Arizona, which said libelous letter was received by said Emma Kirtland.” The remaining part, of the sentence is nothing more than a recital of evidential facts and adds nothing to the ultimate fact of publication directly charged. They are mere surplusage and must be treated as such after the verdict.
The evidence bearing upon the question of publication was; to the effect that the accused knowingly parted with the immediate custody of the alleged libel, and the circumstances under which he so parted with it exposed it to be read or seen by other persons than himself. Paragraph 224, Penal Code of Arizona of 1901, provides; “To sustain a charge of publishing a libel, it is not necessary that the words or things complained of should have been read or seen by another. It is enough that the accused knowingly parted with the immediate custody of the libel, under circumstances which-exposed it to be read or seen by any other person than himself. ’ ’ The
Appellant contends that the information fails to properly plead the alleged libelous matters so as to intelligently understand what is intended as constituting the offense charged j that the libelous matters are pleaded as .extracts without innuendoes explaining the language used so as to give to such language a libelous meaning, and directly refer to the identical person alleged in the information to have been the object of such language.
If the plain, natural meaning of the words is actionable per se, no innuendo is required. 25 Cyc. 578, and note 23.
In the information extracts from the letter were copied. The first extract follows these words of the information: “That said libelous letter contained many malicious defamations expressed in writing, which said defamations did then and there tend to impeach the integrity, virtue and reputation of said J--e B-s and thereby to expose the said J-e B-s to public hatred, contempt, and ridicule, and parts of which malicious defamations said of and concerning said J-e B-s are in words and figures as follows, to wit: That is to say.” Then follows one extract using the pronouns “her” and “she” clearly referring to J-e B-s. Clearly no innuendoes were necessary to explain the meaning of the words used when read in connection with the preceding words of the information, as to whom the reference was made and intended to be made. Following the first extract from the letter and preceding the next extract therefrom appear these words: “And also of tenor following, to wit.” Such words precede each extract copied into the information.
The alleged libelous language contained in the first extract from the instrument is as follows: “I would go down to her home after the children had gone to school and before Willie would get up, and sit and visit with her, and hug her to my breast, feel her person, while the little one would be playing about the floor. She would return my caresses and tell me that she loved me, and that no other man save her husband had ever taken such liberties with her as she allowed me to take; and one time she told me ‘that she did not blame a man for getting all that was coming to him.’ I asked her if she did not think there was something coming to me after all that had passed between us. She replied, ‘Not yet, but sometime perhaps, and she would let me know when.’ ” Can it be correctly said that the true meaning of this language is in need of explanation? The plain, natural meaning is to tend to impeach the virtue and reputation of J-e B-s. If any reasonable meaning can be given to this language other than that it tends to impeach this woman’s virtue and reputation— other than that she permitted a man not her husband to take liberties with her person that only the husband of a virtuous woman could take, and that she gave her promise to commit the crime of adultery in the future with the accused, then the language must be given such meaning, and then an innuendo so otherwise explaining such language becomes necessary. No such necessity here exists. If false per se, such written, published words tend to bring J-e B-s into disrepute, contempt and ridicule, and need no explanation to give them such criminal meaning.
Appellant complains that the information is defective in the particular that no allegation is made that the letter was sent to provoke a breach of the peace or crime. This is untenable. If the statements made in the letter were falsely and maliciously made by the accused, and he knowingly parted with the immediate custody of the libel under the circumstances which exposed it to be read or seen by any other person than himself, it must be presumed that the accused published the libel. Such a libel ordinarily provokes a breach of the peace, and common knowledge informs us that such statements, though true, have often provoked homicides in the past. “Every person who willfully and with a malicious intent to injure another, publishes or procures to be pub
The appellant complains of an instruction given by the court to the jury to the effect that the jury are made by the laws of Arizona the judges of law and the facts on a trial of libel. Paragraph 953 provides: "On a-trial for libel, the jury has the right to determine the law and the fact.” The court instructed the jury as follows: "... Under the statutes of Arizona the crime of libel is the only crime in which the jury is made the judges of the law as well as of the facts of the case. This is true in the case of criminal libel, and you are to be judges of the law as well as of the facts. The court has given you the law governing the facts as the court understands and views it. He has given you this because it is his duty; but you are advised that the instructions the court has given as the law are simply advisory. You are not compelled to follow them- unless they appear to you as the law. You are superior to the judge of this-court, because you are the judges of the law in this ease as well as of the facts. ’ ’
The appellant complains that paragraph 953 of the Penal Code is in conflict with article 6 of the Constitution of Arizona, and thereby repealed. He particularly relies upon sections 6 and 12 of article 6 to sustain this position. Section 6 prescribes the jurisdiction of superior courts and judges of such courts; original jurisdiction in all criminal cases amounting to a felony is vested in such courts. Section 12 provides that "judges shall not charge juries with respect to matters of fact nor comment thereon, but shall declare the
The appellant complains of the orders of the court rejecting evidence offered by him and admitting evidence over his objection. The complaining witness was asked to write certain words in the presence of the jury for the purpose of comparing her handwriting and the peculiarities in spelling certain words with words used in letters alleged to have been written by witness, but of which witness denied the authorship. Other letters in her handwriting were already in evidence, and it does not appear that additional genuine specimens of the witness’ handwriting were necessary for comparison.
Appellant has contended that the court admitted evidence over his objection, and designates such evidence so admitted, the letter from which extracts, charged as libelous, were taken and copied into the information. The objection is to the reading in evidence of the alleged libel “because it is pleaded as a letter, and is not a letter at all.” We see no force in the
A witness for the state, Mrs. Richards, was permitted, over the objections of accused, to testify to a conversation between herself and accused, at which time accused made damaging-statements relative to the Odd Fellows Lodge, and requested Mrs. Richards to write letters signing other persons’ names; thereto, and otherwise assist accused to carry out a scheme relating to the prosecutrix and her relation to another man, to gratify some motive of accused. The witness refused to-comply with his request. The admission of the evidence is; assigned as error. The evidence was offered primarily to impeach the deféndant. The predicate for that purpose was; sufficiently laid by the prosecution upon the cross-examination of the defendant without objection from him. The ground of objection to the testimony of the witness concerning the-Odd Fellows Lodge and prosecutrix was that no proper foundation had been laid. The defendant had denied having had such a conversation at witness’ home at any time. The evidence flatly contradicted his denial, and further tended to-show that accused deliberately formed a design to injureprosecutrix, and bears upon the motive prompting him in-writing the libelous communication involved in the case. The-request relative to prosecutrix was properly a circumstance-bearing upon the malicious intent with which the libelous; writing was executed and published. Either reason present, was sufficient to entitle the evidence to admission.
Appellant complains of other errors committed. We have examined each of such questions and find no sufficient grounds, that justify a reversal of the judgment. To notice each separate ground alleged would only serve to extend this opinion with no profit. We will briefly refer to the general assignment to the effect that the verdict is contrary to the evidence. With the exception already mentioned, the evidence sharply conflicts at every angle of the case. The testimony tending to establish every other fact and circumstance in the case is. directly contradicted by the accused or some witness.- Every fact or circumstance offered in support of the defense is sharply contradicted by the prosecution. The defense relies upon the truth of the statements made, and, as an excuse for making and publishing the truth, he asserts that he had been
This court will not reverse a judgment founded upon a verdict so supported, merely because a conflict occurs in the evidence.
A careful examination of the entire record reveals no reversible error.
The judgment is affirmed.
FRANKLIN, G. J., and ROSS, J., concur.
Application for rehearing denied.