State v. Clyne, 53 Kan. 8

State v. Clyne

53 Kan. 8 | Kan. | 1894

The opinion of the court was delivered by

HoktON, C. J.:

On January 25, 1891, and prior thereto, the county treasurer’s office, with the other public offices of Stafford county, were situated in the courthouse in St. John, *15in that county; and on the night of that day the treasurer’s office was forcibly entered, and moneys, books, etc., stolen. Some time afterward the county attorney of Stafford county commenced criminal prosecutions against several persons who were suspected of committing the offense, and among others against Joseph Clyne and B. A. Webber. At the time of the burglary and larceny, and before and since, Joseph Clyne aud Frank S. Larabee both resided at Stafford. Webber’s case was taken on change of venue to Reno county, and tried at Hutchinson, before the district court of that county. The jury,, however, disagreed. On the trial, James K. Oliver became state’s evidence and testified in the ease. On September 21, 1892, while the case was on trial, Clyne went from Stafford to Hutchinson, and there had conversations with Webber and Landes and others, with regard to Oliver’s testimony, and in the evening of the same day returned to his home. The next morning he went to the printing office where The People’s Paper was published. Earl G. Nettleton was editor, publisher, and proprietor. His wife, Allie M. Nettleton, and his brother, Adelbert M. Nettleton, assisted him. Clyne had no connection with the newspaper, and at that time the Net-tletons were strangers to him. He wrote and procured to be published thé following article as an editorial in The People’s Paper on September 22, 1892, at Stafford:

“thieves pall out.

“The case against the Stafford county boodlers is now occupying the attention of Judge Martin’s court, at Hutchinson. Oliver, one of the accused, has turned state’s evidence, and gave the whole robbery away. He testified on oath that he went to Frank Larabee and told him the courthouse was to be robbed, and if he had any money there to get it out at once. It was further developed in the evidence, that Larabee went to the treasurer and drew a large sum of money a day or two before the robbery. We understand Larabee corroborated the above evidence, and admitted being posted as to the time the robbery would occur.”

Upon the trial, Clyne, who was a witness in his own behalf,- was asked: “I wish you would state the purpose which *16actuated you to and the motive you had in view in writing that article fqr publication.” This was objected to, and the objection was sustained. It is now insisted that material error was committed thereby. It appears that Frank S. Larabee was, at the time of the publication, a candidate for the office of presidential elector on the republican ticket. It is claimed that the publication was one of privilege on that account, and that the motive or intent of Clyne, in writing and publishing the article complained of, ought to have gone to the jury. Clyne was permitted to testify fully with regard to when, where and how he obtained his information with respect to Oliver’s testimony, and the thieves, boodlers and robbers referred to, and as to all the facts and circumstances that might have any relevancy to thé case, and to everything that was said or done at the time of his preparing his article for publication, and in procuring its publication. He was also permitted to give the following evidence:

“Ques. Now, I ask you to state, at the time that article was written and furnished to the publishers of the paper, what was your judgment and belief as to its truthfulness. Ans. I believed it was true.

“Q,. Now, you stated that the time you wrote that article you believed it to be true? A. Yes, sir.

“Q. What made you believe it was true? A. The information that I had procured at Hutchinson, together with the information that Mr. Oliver gave me before that.

“Q. The information which you procured at Hutchinson from the persons that you told the Nettletons had told you about it? A. From the attorney, and from Mr. Webber, and from Mr. Landes, and from the conversation that I had with Mr. Oliver, and from the fact that I investigated the books and found that Mr. Larabee had drawn money out of the treasury — the county treasury — as Oliver told me he would.

“Q. I believe you stated you had known Mr. Larabee for five or six years? A. Five years I put it, I think.

“Q. Have you known him quite well? A. During that length of time, yes, sir.

“Q. What have been your relations with him for the last two or three years — friendly, or otherwise? A. Well, they have n’t been very friendly.

*17“Q. Do you speak as you meet? A. No.

“Q.. How long has that condition of affairs existed? A. Since be sued me for killing his dog — for $250.”

Clyne also testified, upon cross-examination, as follows:

“ Q,. Did you say to Mr. Nettleton, or Mr. Nettleton say to you, about the time you were leaving the office, not to let it be known who wrote the article? A. Yes, I believe I did. I told him I did n’t want my name signed to it.

“Q,. Why did n’t you want your name signed to it? A. Oh, people that write for papers do n’t generally do that.

“Q. Are you a newspaper correspondent? A. I was starting out in the business then.

“Q,. That was your maiden effort, then? A. Yes.

“Q. Have you had any experience in that line since? A. No, I have not written very much since..

“Q,. In giving your reason for not signing the article, what reason did you have for not wanting it known who wrote it? A. I can’t give any reason, only I did n’t want my name put to a piece that I would put in a paper. I told Mr. Nettleton that the article was true, and that he need fear no trouble.”

' motive in writ-ang — evidence. 1. Libel — malice — motive. Under the evidence disclosed, we think the court committed no error prejudicial to the defendant in sustaining the objection to the question proposed. “ When a man intentionally and personally publishes of an-J # r J r other what is libelous, by the general doctrine he is held to have malice in law against him, whatever the motive in fact.” (2 Bish. New Crim. L., § 922; 13 Am. & Eng. Encyc. of Law, 385, 386; Newell, Def. 301, ¶ 22; Odg. Lib. 264, 265; 2 Whar. Cr. Law, ¶ 1654.)

It is next insisted that the court did not give sufficiently clear, explicit or applicable instructions with reference to the publication of the article concerning candidates for office, and to what extent they are privileged. An examination of all of the instructions shows that they were very favorable to the defendant, and sufficiently so even if the article published *18were privileged. Among other things, the court charged the jury that

“The writing and publishing the article complained of in the information in this case, with which the defendant, Joseph Clyne, is charged, is not seriously controverted, but it is by the defendant admitted to have been by him written and furnished The People’s Paper for publication. The defendant, however, denies that the article was designed or intended to be scandalous or defamatory of anyone. He claims that in preparing the same for publication he was actuated by pure motives, and designed only to impart information to the citizens of Stafford county who should read the paper of and concerning matters of deep public and common interest to such citizens. The article mentions Frank Larabee, who the defendant claims to have been, and who is admitted to have been, at the date of writing and publishing thereof, a candidate upon the republican ticket for the office of presidential elector. It also mentions the judicial proceedings then pending in the district court of Reno county, which had grown out of and was pertaining to an alleged robbery and larceny connected with the funds, books and papers belonging to the citizens of Stafford county in connection with the office of county treasurer of that county. You are instructed, as a matter of law, that if the defendant, in writing the article, and preparing the same for publication, was moved thereunto by an honest purpose to inform the electors and the citizens generally of the conduct of the parties charged with being implicated in such unlawful interference with said treasurer's office and the contents thereof, or as to the qualifications and moral character of a candidate seeking the votes of electors for the office aforesaid, or for the furtherance of both such purposes, that said article and communication was and is a privileged communication; and that if the defendant was guided by and based his actions upon information and belief that the matters and things therein stated were substantially true, the same was not libelous in law, but that the defendant should and must be acquitted, unless you find from the evidence beyond a reasonable doubt that he was actuated by actual malice in so doing.”

Again, the court charged the jury as follows:

“ One may, in good faith, publish what he honestly believes to be the truth, which is essential to the protection of his in*19terest, or interests of other persons to whom he makes the publication, and thereby commits no offense, although the 'matters published by him are not true in fact, and are injurious to the character of others. Each and every voter is interested in the qualifications and moral character of candidates for public office. If the defendant, in framing for publication that article, was mistaken as to the truth of the same or some parts thereof, and they are in fact derogatory to the character of the parties, or any of them, therein mentioned or referred to, yet if he at the time believed the matters to be true, he thereby committed no criminal offense. Unless you find that the same was done through actual malice, you should acquit.”

S- sufficient!011’ It is also insisted that the information is not sufficient or definite. We think it is sufficiently certain to sustain the charge alleged, and that, within the provisions of the statute, it is libelous. Section 270 of the crimes act reads:

“A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath, or expose him to public hatred, contempt, or ridicule, or to deprive him of the Benefits of public confidence and social intercourse.” (Castle v. Houston, 19 Kas. 417; The State v. Brady, 44 id. 435; The State v.Wait, 44 id. 310; The State v. Morrison, 46 id. 679, and cases cited.

We have considered the other allegations of error discussed in the briefs, but we do not think it necessary to comment thereon. The defamatory matter in the article published appears to have been wholly false. Frank S. Larabee was not referred to in the article as a candidate for any office, and the attention of the readers of the paper was not called to that fact by anything stated in the libelous article. We think the conviction is sustained by the record.

The judgment will be affirmed.

All' the Justices concurring.