47 Md. 403 | Md. | 1878
delivered the opinion of the Court.
The appellant sued the appellees, the editors and proprietors of a daily newspaper, called “The Baltimore American and Commercial Advertiser,” published in Baltimore City,,for the following alleged libel upon him, which appeared in that paper on the 25th of September, 1875, under the heading, “a ruffian caged.”
“For several weeks past the police of the North-western District have been endeavoring to make the arrest of a man named Wm. McBee, who has occasioned considerable trouble in various neighborhoods. It appears he is a low character who habitually frequents the streets and always seeks to throw himself in the way of school girls, often insulting them with indecent remarks and actions. In some instances he would wait around the schools until the dismissal of the pupils, and then would exhibit the greatest importunity in pressing his company upon them. This man and his reputation became so extensively known
The defendants pleaded 1st, not guilty, and 2nd, that said alleged defamatory writing set out in the declaration is true, and the case was tried upon issues joined on these pleas. In the course of the trial, several exceptions were taken to the rulings of the Court, and these present for our determination one or two questions of interest and importance.
1st. The plaintiff offered in evidence the libellous publication declared on, and two substantial repetitions of the same, after suit brought, one published on the 8th of January, 1876, and the other on the 29th of March, 1877, in the same newspaper. He then further offered evidence tending to show that he was a laboring man, a mechanic, having a large family to support by his labor ; the wealth and position of the defendants; the extent of the circulation of the newspaper in which the libellous publications appeared, and that the defendants were the editors, publishers and proprietors thereof, and there rested his case.
The defendants then, to sustain the issue on their part, offered evidence tending to prove that the plaintiff was arrested and taken before Justice McCaffray upon a charge of indecent exposure of his person, that an investigation and hearing was had upon that charge before the justice and witnesses examined thereat, but none were produced
The most important question in the case is, was the Court right in allowing this offered testimony to go to the jury, and in instructing them that if they find from the evidence that the several matters of fact narrated in the alleged libel were published by the defendants, and that the same are a correct account of the charges preferred against the plaintiff in the course of an official inquiry before a justice of the peace, and shall further find that the commentaries upon these matters of fact contained in this publication are a fair commentary upon the same, assuming them to be true, then the alleged libel was a privileged communication, and the plaintiff is not entitled to recover unless they shall further find the defendants were actuated by express malice towards the plaintiff.
Without going at large into the general question as to what communications the law protects from a civil action or criminal prosecution for libel, it is sufficient for the purposes of this case to say, that the adjudications both in
The precise question presented by the rulings now under consideration is, whether the publication of a report of proceedings before a justice of the peace of this State, in in the course of a preliminary inquiry upon a charge of an indictable offence, resulting in holding the party to bail or committing him for the action of the grand jury, is entitled to the qualified privilege which attaches to the reports of the proceedings of Courts of justice ? At one time the preponderance of judicial opinion, at least, in England may be conceded to have been against according this privilege to reports of such proceedings before the magistrates of that country. The case most strongly supporting that view is that of Duncan vs. Thwaites, 3 Barn. & Cress., 556, decided in 1824. In that case the judgment of the Court was delivered by Chief J. Abbott, and all the then decisions and opinions of Judges having any bearing on the question, were referred to in argument on the one side or the other. The case cited which approached nearest to sustaining the privilege was Currie vs. Walter, 1 Esp., 456, which his Lordship admitted was a case of great authority in itself and derived an additional
Erom the views thus expressed by Lord Campbell, it is plain the.reports of such proceedings were then regarded by English Judges much more favorably than they were in 1824 when Duncan vs. Thwaites was decided. But in 1868, ten years after Lewis vs. Levy, the case of Wason vs. Walter, (4 Law Rep. Q. B., 73,1 was decided in the same Court. The admirable judgment delivered by C. J. Cockburn, in that case has received the approval of this Court in Snyder vs. Fulton, 34 Md., 128, as well for the soundness of the legal propositions therein stated, as for the clear and forcible manner in which they are expressed. There the alleged libels consisted of a report in the Times of a debate in the House of Lords, in which the plaintiff was charged with falsehood and malignity, and of an editorial article in the same paper containing comments unfavorable to the plaintiff founded on this debate. Eor the first time the question was directly presented for adjudication, whether reports of debates in parliament were entitled to the qualified privilege to which we have adverted, and the Court held that the analogy between such reports, and those of proceedings of Courts of justice, is in every respect complete, and that the privilege with its limitations which attaches to the one necessarily
Such are the opinions now held by the English Courts on this subject. The only American cases cited by the appellant’s counsel or which we have been able to discover in which this question was directly presented, are Stanly vs. Webb, 4 Sandf., 21, and Gazette Co. vs. Timberlake, 10 Ohio State Rep., 548. In each of these it was decided that the privilege did not extend to the publication of such proceedings before magistrates, but for this position each of them relies upon the case of Duncan vs. Thwaites, and prior expressions of opinion by English Judges. The case in Sanford was decided in 1850, and in 1854 the Legislature of New York passed an Act (which seems to be merely declaratory of the common law,) to the effect that no action will lie for the publication of a fair and true report of a judicial proceeding, except on proof of malice in the making it, which is not to be implied from
In this State we are neither restrained nor aided by any adjudication of this Court upon the subject. The views of the English Judges in the recent cases referred to appear to us to be well founded and we see no good reason why we should not adopt them. By our Constitution justices of the peace are made part of the judiciary in whom the judicial power of the State is vested. The most useful and important part of their duties is to investigate charges for indictable offences, and when so acting they are unquestionably judicial officers discharging judicial functions. Here no authority (as in England) has been conferred upon them by statute to conduct their examinations in private. When a party accused of crime is brought before a justice of the peace the investigation which follows is public, or in presence of as many of the public as may choose to attend or can be accommodated in the room or place where the proceeding is conducted. The accused may then disclose his defence or remain silent and reserve it for the time of trial. If he adopts the former course, he has the right, if he chooses, to have counsel to examine and cross-examine the witnesses against him, and upon his reasonable request the magistrate has power to summon and compel the attendance of any witnesses who can give material evidence in his behalf. The investigation may be continued from time to time, and if upon examination of the whole matter and all the witnesses it appears the charge against the accused is wholly groundless, the magistrate may discharge him without
2nd. The next question arises upon the plea of justification and the instructions granted thereon. In civil suits (whatever may have been the case in criminal prosecutions) for libel, it has always been held that the truth of the defamatory matter may be pleaded in justification, and if established by proof is a complete bar to the action. The defendants’ first prayer, which the Court granted, is addressed to this view of the case. By it the jury were instructed that if they found that the several charges contained in the publication declared on were true, then the commentaries accompanying those charges were but a fair and reasonable condemnation of the acts so charged, and the defendants were justified as well in the narrative of the charges as in the comments thereon, and the plaintiff cannot recover. In this instruction it° is assumed that the fairness and reasonableness of the comments is a question of law for the Court and not of fact for the jury, and the only objection that can be made to it must rest on this ground. But it is to be observed that this question arises
3rd. As to the rulings in the second and third exceptions.
In the second exception, after the defendants had offered proof tending to sustain the plea of justification, the plaintiff by way of rebuttal, offered in evidence the record of his acquittal by the Criminal Court of Baltimore City, of the charge of indecent exposure of his person on the occasion referred to, and this the Court rejected. In this ruling there was no error. Such acquittal could not be replied to the plea of justification by way of estoppel, (Folkard’s Starkie on Libel and Slander, sec 505,) nor does the acquittal of the plaintiff on an indictment charging him with the same offence as is specified in the plea of justification, preclude the defendants from proving the truth of the charge, nor indeed does it seem to be evidence at all; for where the words imputed a charge of murder for which the plaintiff had been tried and acquitted, it was held the defendant might justify specially, and that the truth of such plea might be tried. Ibid, sec. 693, England vs. Bourke, 3 Esp., 80. Reference is also made on this point to the recent case of Layman vs. Latimer, 26 Weekly Rep., 305. Reliance was placed in argument upon the fact that in an action for false arrest and malicious prosecution the record of the plaintiff’s acquittal is admissible, but in such an action it must he shown by the plaintiff as an essential requisite to the maintenance of his suit that the criminal prosecution against him had terminated in his favor, and hence in that species of action the record of acquittal is admissible to prove that part of the plaintiff’s case. But no such thing is required in an action for libel, and his acquittal in a prosecution by the
After the defendants had offered evidence under this plea by several witnesses, tending to show that the plaintiff had made an indecent exposure of his person to them at a certain time and place, and on two other occasions, the plaintiff offered the testimony of several witnesses tending to show that at the time mentioned he was absent some two or three miles from the locality, and then offered the testimony of a number of witnesses that he was a man of good moral character. The Court restricted this offer of character to showing what his character was for delicacy, modesty and chastity, and to this restriction he excepted. This constitutes the third exception, and as we understand it, it presents the question whether the plaintiff can offer evidence of general good character in rebuttal of the defendant’s proof under the plea of justification tending to show that he was guilty of the imputed offence. It is not a question whether the defendant can under the general issue, and in mitigation of damages, show particular bad traits of character in the plaintiff. If evidence of bad character is admissible at all for the defendant under that issue, it is for the purpose of showing that a bad character is less damaged by a libel or slander than a good one, and in such case there is good reason for requiring the defendant, if he attempts to assail the plaintiff’s character at all, to show that it is generally bad. But where the proof is confined to the plea of justification, under which the defendant assumes the burden of proving the plaintiff guilty of the imputed offence, and the latter seeks to repel the defendant’s proof on that subject and show his innocence by evidence of good character, his evidence on that point and for that purpose must, in our judgment, be confined to those traits of character which the
From what we have said it follows that the rulings upon the admissibility of evidence in the first, second, and third exceptions, the granting of the defendants’ first and" second prayers, the Court’s modification of the plaintiff’s first prayer, the rejection of his second, fourth and fifth prayers, and the Court’s instruction in lieu of the defendants’ ninth prayer were correct. The Court’s instruction in lieu of the plaintiff’s second prayer being, as we have shown, right in other respects, if there was any error in that part of it which declares that the interposition of the plea of justification might be taken by the jury as evidence tending to prove express malice in the original publication, it was an error in favor of the plaintiff and not against him. The jury having found a verdict for the defendants, it is plain they must have so found either upon the plea of justification or the defence of privilege, and it therefore becomes unnecessary for us to consider whether or not the Court gave them correct instructions upon the question of damages. For the same reason it is
Judgment affirmed.