262 P. 24 | Wyo. | 1927
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *374
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *375 The defendants were editor and manager respectively of the Casper Herald, a daily newspaper printed, issued and published at the times herein mentioned at Casper, Wyoming, with a circulation in Converse County, Wyoming, some copies of the paper being sent to one Welsh, an agent who sold them in the town of Douglas. During the month of October, 1923, one Cantlin was tried in the District Court of Converse County for the murder of Nellie E. Newcomb, charged to have been committed in Casper. On the 11th day of that month, the jury which had been selected to try that cause returned a verdict of not guilty. Thereafter, but on the same day, the following article appeared in the Casper Herald above mentioned, namely:
"Twelve good men and true! have set aside the laws of the civilized world in order to free a man whose hands are red with the blood of a defenseless victim. With such support and encouragement Cantlin should wind up with an enviable record as a gunman. No longer will he have to accept the wages of an undersheriff. The way is open for him to go on the stage and clean up thousands. A man that can hit an automobile twice at point blank range with bullets fired from a pistol aimed in another direction is indeed an object of curiosity. His name should live forever in the Hall of Fame. There should be a great demand for his memoirs. We suggest that he write a book and call it "The Wonders of Moonshine, or Women I Have Killed." With the riches that will pour in from the receipts at the vaudeville houses and the sale of the book we hope Cantlin will not forget the men who helped place the stamp of authenticity on his weird tale. They should at least be entitled to one-half of what he earns. But then again maybe they won't need it. The Ku Klux Klan it is said, pays those who serve them with a generous hand. And transposing some of Attorney Hemmingway's words, spoken yesterday, `we don't see how any attorney could be so vile as to protect such a client.' Again we repeat, `twelve good men and true.' True to the principles of that doctored brand of Americanism taught by the Ku Klux Klan. They served their Kleagle well. And they undoubtedly will be handsomely rewarded. An innocent woman lies dead in her grave. Slain for no cause at all. And a jury of 12 Douglas citizens declare it was Cantlin's duty to kill her. If you drive a car, be careful. The `crime' of failing to turn on your dimmers is punishable by DEATH. Warn your wife and sisters. Human life is something to be taken at will by an undersheriff. `Twelve good men and true' have so declared at Douglas. Here are their names, men. Look them over. These are the men who said after hearing the evidence that Cantlin was justified in killing Mrs. Nellie B. Newcomb who now rests unavenged in her grave.
Chester Sims Lloyd Groggert Charles Patterson E.R. Rouse George Peake William Gerlock H.B. Harton James Pexton Macky Jackson Floyd Roush F.F. Call Jack Kerwin"*379
On October 31, 1923, an information was filed in Converse County, charging the above named defendants with criminal libel, based upon the article appearing in the newspaper as above mentioned, and under section 7088, W.C.S. 1920, which reads as follows:
"Whoever makes, composes, dictates, prints or writes a libel to be published; or procures the same to be done; and whoever publishes or knowingly aids in publishing or communicating a libel, is guilty of libel, and shall be fined not more than one thousand dollars, to which may be added imprisonment in the county jail for not more than three months."
On May 7, 1924, the defendants appeared and filed a motion to change the place of trial from Converse County. On the same day the motion was granted and the cause was transferred to Goshen County, Wyoming, for trial, and the court also on the same day made and entered an order appointing Reid More of Torrington, Wyoming, to assist the County Attorney of Goshen County in the prosecution of the cause. On May 8, 1924, the defendants filed a motion for a change of judge. This motion, too, was sustained and the cause was referred to the Hon. William A. Riner. Nothing further appears to have been done in the cause, aside from the transfer thereof, until June 18, 1925, when a motion was filed by the County Attorney of Goshen County, and other attorneys in the case, for permission to amend the information. This motion was presented to the court and sustained, over the objection of the defendant, on June 25, 1925, and the cause was continued over the term, which, too, was over the objection of the defendants. The case was set down for trial on November 17, 1925. On that day the defendants filed a motion to quash the amended information, which was overruled. The defendants then pleaded not guilty, and the trial of the case was commenced. The jury returned a verdict of guilty, and each of the defendants was fined the sum of $250, and the costs of the action. From this judgment they have appealed. *380
1. It is contended that under section 10 of article 1 of the Constitution of this state, a defendant in a criminal case is entitled to a trial in the county in which the offense charged has been committed; that in the instant case the offense, if any was committed, was committed in Natrona County, Wyoming; that, accordingly, there was no authority to commence this action in the District Court of Converse County. If the premises are correct, that is to say, if the crime charged was only committed in Natrona County, if at all, the contention must be sustained. But the general current of authority is the other way. In 17 R.C.L. 464, it is said:
"It is generally held that a criminal prosecution for libel may be instituted in any jurisdiction where the libelous article was published or circulated irrespective of where such article was written or printed."
The text is based on a note to 9 Ann. Cas. 382, where a number of cases are cited sustaining this rule. In King v. Girdwood, 1 Leach 142, 168 Eng. Reprint, decided in 1776; in King v. Johnson, 7 East 65, 103 Eng. Reprint, decided in 1805, and in Rex v. Watson, 1 Camp. 215, 170 Eng. Reprint, decided in 1808, it was held that a libelous letter sent through the mail warranted prosecution in the county in which the letter was received. See also King v. Burdett, 4 Barnw. Ald. 95, 6 E.C.L. 404, decided in 1820. Perhaps the earliest case on the subject in the United States is Com. v. Blanding, 3 Pick. (Mass.) 304, decided in 1825. That case held that the author of a libel printed in a newspaper could be prosecuted in the county in which the paper circulated, though it was printed in an adjoining state. That, too, was held in the case of Baker v. State,
92 A. 619; note 37 A.L.R. 914-917; 25 Cyc. 433; 18 Am. Eng. Ency. Law (2nd ed.) 1119; 37 C.J. 146.
Whatever may be the meaning of the word "publish" or "publishing," used in section 7088, W.C.S. 1920, the section also makes persons liable to prosecution for criminal libel who "communicate" it. In the case at bar the defendants "communicated" the libel in question to readers in Converse County through the mail, and such libel is, according to the authorities already cited, punishable in the county where it is received. Again, defendants "communicated" the libel to readers in the same county through an agent in that county and hence, though the communication by that means commenced at Casper, it was not completed except through the agent. The communication of a libel is necessarily often continuing in its nature, and when it is begun in one county but completed in another, there is no sound reason why the venue for a prosecution based thereon should be laid in the county where the communication began, rather than in the county where it was received. In Palliser v. United States,
"Where an offense is committed by means of a communication through the post office, the sender has sometimes, as appears by the cases cited for the petitioner, been held to be punishable at the place where he mails the letter. * * * But it does not follow that he is not punishable at the place where the letter is received by the person to whom it is addressed, and it is settled by an overwhelming weight of authority that he may be tried and punished at that place, whether the unlawfulness of the communication through the post office consists in its being a threatening letter * * * or a libel * * * or a false pretence or fraudulent representation * * *. In the case before us the offense charged being an offer of money * * * in a letter mailed in New York and addressed to a postmaster in Connecticut * * * it might admit of doubt whether any offense against the *382 laws of the United States was committed until the offer or tender was known to the postmaster, and might have influenced his mind. But there can be no doubt at all that if any offense was committed in New York, the offense continued to be committed when the letter reached the postmaster in Connecticut."
The principle of that case was reaffirmed in Armour Packing Company,
The cases of Houston v. Pulitzer Pub. Co.,
In the Federal case, Judge Anderson held that unless the act constituting a criminal libel is considered to be complete where the paper is printed and issued, it would follow that the circulation of the paper in each and every county would constitute a separate crime. The Louisiana court follows the same line of reasoning, but further considers the point that one conviction would bar a second prosecution, and says: *383
"To say that a prosecution and conviction by a court having jurisdiction in any parish where one of the newspapers found its way would protect the defendant from prosecution in any other parish does not answer the constitutional requirement that he shall be tried for what he did in the parish where the offense was committed and in no other parish."
In the Alabama case the court said:
"If every separate publication of the identical libel is indeed a separate offense, there is no escape from the conclusion that separate actions and prosecutions may be simultaneously maintained in every jurisdiction * * *. But sensible of the injustice and absurdity of such a result, as applied to newspapers, the majority of the Missouri court in Julian v. K.C. Star Company (
We fully concur, that so far as publishers of newspapers, printed, published and issued in the ordinary way, are concerned, they cannot be held guilty of more than one offense on account of a criminal libel contained in any issue of the paper. There is in such case but one act, but one utterance. But we cannot overlook the fact, overlooked in the cases just cited, that such act, such utterance, is, or is apt to be, necessarily continuing in its nature, and though in such case there is but one crime (Armour Packing Co. v. United States, supra), why should it be said to have been committed in the county where the paper is printed and issued, any more than in the county where it is circulated and where the main injury from the libel is apt to be inflicted, *384 particularly in a case where, as under our statute, the communication of a libel, knowingly done, constitutes a crime? We realize the fact that to permit prosecution to be commenced in any county in the state where the paper circulates may at times lead to great abuse. But on the other hand, to hold that the place of printing and issuing the paper is the only place where such prosecution can take place, might also lead to great abuse, and would, for instance, enable a newspaper, printed outside of the state but circulated within it, to vilify citizens of this state without restraint, leaving the latter virtually helpless victims in the hands of the unscrupulous, even though the authors of a libel should live in this state or could be reached within it subsequent to the publication. We do not believe that such was the intention of the legislature in enacting our statute and we think that the venue in the instant case was properly laid in Converse County.
2. The original information was filed in October, 1923. No preliminary examination was had, but this was not necessary, inasmuch as the charge was a misdemeanor. Nicholson v. State,
3. Mr. Jackson, one of the jurors in the trial of Cantlin, testified that no one, after the publication of the article in question, treated him differently from what he had been treated before; that he had just as many friends in Converse County as before; that he had not been disgraced in any way. No testimony was offered by the State to show that any of the jurors in the Cantlin case had been scandalized, damaged, disgraced or otherwise injured. Hence, it is contended that the evidence is insufficient to sustain the verdict. Counsel for the defendants have cited us to no authority sustaining their contention. The basis for criminal *387 liability for libel is its injurious effect on the public or its tendency to provoke breach of the peace. And it is generally held that a defendant may be held responsible in a criminal case, if the defamatory words are of such a nature that they tend to disgrace and degrade the person libeled or hold him up to public hatred, contempt or ridicule, or cause that person to be shunned or avoided. 37 C.J. 138. The character of the article in question here is such that in a civil case it would be held libelous perse, requiring no showing of special damages in order to enable a plaintiff in such suit to recover. Neither did it require any evidence on the part of the State in this case that the persons attacked were in fact scandalized, damaged, disgraced or otherwise injured. The article speaks for itself, and the jurors in the instant case were just as able to determine its nature and its tendency as any witnesses might have been. And Mr. Jackson and any of the other jurors in the Cantlin case against whom the article in question was directed might be among those least able to judge as to the effect or the tendency thereof. The contention, accordingly, must be overruled.
Finding no reversible error in the record, the judgment herein should be affirmed, and it is so ordered.
Affirmed.
POTTER, J., and KIMBALL, J., concur.
Addendum
The other points argued go over the same ground as on the original hearing. We see no reason to change our opinion thereon, and the petition for rehearing must accordingly be denied.
Rehearing Denied.
KIMBALL, J., concurs. *389