44 Kan. 310 | Kan. | 1890
Lead Opinion
The opinion of the court was delivered by
This was a criminal prosecution commenced in the district court of Saline county, in which it was
It appears that on Jauuary 3, 1888, in Lincoln county, Patrick Cleary shot and killed Jesse Turner; that afterward he was charged with murder in the first degree, and tried therefor and convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for the term of twenty years; that the sentence was afterward reversed by the supreme court, and a new trial granted, (The State v. Cleary, 40 Kas. 287;) that on May 16, 1889, and succeeding days, he was again tried in the district court of Lincoln county for murder; that during such trial J. G. Mohler, an attorney at law residing in Saline county, assisted in the defense; that on May 29, 1889, the jury retired to deliberate upon their verdict, but failing to agree, they were discharged on June 1, 1889; that on June 3, 1889, Cleary was taken by a mob in Lincoln county, and hung until he was dead; that on June 13, 1889, the present defendant, Walter S. Wait, published in a weekly newspaper edited and published by him in Lincoln county, and known as the Lincoln Beacon, an article which reads as follows :
“Sentimentalists cannot arouse sympathy for Pat Cleary by appealing to the heart, or saying that the murder was committed in self-defense. Pat was a murderer on at least three occasions; was a highway robber plying his vocation from Salina to Denver, and ought to have been killed years ago. . . . Kansas people ought now to be convinced of the necessity of capital punishment. Men commit the most cold-blooded murders imaginable, and after spending thousands of dollars, a sentence of from three to twenty years is the result. We do not want the legislature abolished until after they pass a suitable law on this subject. . . . Senator Mohler is getting a great deal of free advertising these days. We will have to spring his name as a candidate for the senate; not against Ingalls, but against Burton, if this thing continues. — Salina Daily Republican.
*313 “The number of people in Lincoln county who would have raised a finger to remove Pat Cleary had his attorney been content to have let him serve his first sentence of only twenty years, could have been counted on the fingers of one hand. That Pat Cleary is dead can be laid at the door of his attorney, J. G. Mohler, whose insatiate greed to secure not only the last dollar that Pat’s family had, but the last penny his relatives and friends had, and also a $400 judgment covering what they might hereafter earn, must be satisfied. He had no possible hope of being able to clear Cleary with a fair jury. His only hope lay in a packed jury, and his manner of conducting the last trial showed that he relied upon hanging the jury by a ‘fixed man.’ His effort before the jury was so weak that it was noticed by nine out of ten who heard it. His whole effort was constituted of abuse of the witnesses and Mr. Downey, one of the attorneys for the state. The people felt that it was absolutely necessary that Pat Cleary should be where he could take the lives of no more men; and they would have been satisfied had he been imprisoned for even twenty years, for that would virtually have been a life-term. Society would then have been safe from depredations by him. But a mob could not imprison him. They had but one alternative, and Jerry Mohler forced that upon them. If he likes the advertising, he is welcome to it.”
The newspaper in which this article was published also had a circulation in Saline county. On June 17, 1889, this present criminal prosecution was commenced in the district court of Saline county, J. G. Mohler being the prosecuting witness. Only that portion of the aforesaid article commencing with the words, “The number of people in Lincoln county,” etc., and closing with the end of the article, is complained of. The ease was tried in the manner and with the result aforesaid.
Section 11 of the bill of rights of the constitution, reads as follows:
“Sec. 11. The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.”
“Sec. 270. A libel is the malicious defamation of a person, and 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, or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends.”
“Sec. 272. In all prosecutions or indictments for libels, the truth thereof may be given in evidence to the jury, and if it appears to them that the matter as charged as libelous was true, and was published with good motives and for justifiable ends, the defendant shall be acquitted.”
“Sec. 275. In all indictments or prosecutions for libel, the jury, after having received th'e direction of the court, shall have the right to determine at their discretion, the law and the fact.”
That portion of §272, above quoted, requiring the defendant, in order to make a good defense of justification, to prove that the alleged libelous matter was published “ with good motives,” has been held to be in violation of the constitution, and void. (The State v. Verry, 36 Kas. 416.)
The defendant also claims that the publication of the article belongs to a class which is privileged, or at least conditionally privileged. Now it is generally true that a newspaper publisher may without committing libel publish judicial proceedings, although such proceedings may contain false statements injurious to individual persons. In such a case he merely
The defendant further claims that the court below erred in refusing to permit evidence to be introduced on the trial tending to show the conduct and actions in the jury-room of the juror J. P. Harman, who, it is claimed, was a “fixed man,”
“He [meaning the said J. G. Mohler] had no possible hope of being able to clear Cleary [meaning the said Patrick Cleary], with a fair jury. His [meaning the said J. G. Mohler’s] only hope lay in a packed jury [meaning thereby, a jury composed of one or more persons unduly or dishonestly biased or prejudiced in favor of said Patrick Cleary], and his [meaning the said J. G. Mohler’s] manner of conducting the last trial [meaning the trial aforesaid of said Patrick Cleary] showed that he [meaning the said J. G. Mohler] relied upon hanging the jury by a ‘fixed man’ [meaning that said J. G. Mohler, either by himself or others with his knowledge, did unlawfully bribe or induce a member of the jury on said trial, corruptly, not to agree to a verdict of guilty against the said Patrick Cleary on said charge of murder in the first degree, and relied as his defense of bis said client Patrick Cleary, on said trial upon a jury composed of one or more persons unduly or dishonestly or corruptly biased or prejudiced in favor of said Patrick Cleary]. His [meaning the said J. G. Mohler’s] effort before the jury [meaning the jury in the case aforesaid] was so weak that it was noticed by nine out of ten who heard it [meaning that the said J. G. Mohler did not labor all in his power as an advocate,"attorney and counselor before the jury aforesaid and in the case aforesaid, and on the trial thereof, because that the said J. G. Mohler knew that one or more of said jury was unduly or dishonestly or corruptly biased or prejudiced or influenced in favor of said Patrick Cleary, or against rendering a verdict in said cause against said Patrick Cleary of guilty of any of the offenses of which he stood charged in said cause].”
Some evidence was introduced on the trial of this case tending to show that Mohler did rely upon some one hanging the jury in the Cleary case. Other evidence was introduced tending to show that an improper effort was made, presumably by bribery, to procure some one to hang the jury in that case.
“If that kind of evidence is admissible, it would be necessary to recall to this court every witness who testified in that case, and to show whether or not he had reasons for taking*320 the position he did upon the jury. I do not believe that evidence ought to be admitted.”
The defendant further complains of the following matters, that occurred in the closing argument of counsel for the state, to wit:
“In the closing argument upon the part of the state, J. E. Burton, after referring to the position taken by defendant and his counsel that the juror Harman had been bribed, and that*322 Pat Cleary was a murderer, he said: ‘The supreme court takes a different view from what they do as to Cleary’s guilt/ and thereupon, taking up the 40th volume of the Kansas Reports, and turning to the case of The State v. Cleary, that he would read what the supreme court said as to the guilt or innocence of Cleary.
“Thereupon counsel for defendant interrupted Mr. Burton in his argument, and objected to the court to counsel’s reading from the report of the case which he had just referred to; the court overruled said objection, remarking that ‘counsel for defendant had been allowed great latitude in presenting the case to the jury.’ To which ruling defendant excepted.
“Thereupon said J. R. Burton read from the decision of the court in the case referred to above, on page 299, as follows :
“‘We are loth to express an opinion upon the merits of this case, but we are compelled by an unavoidable necessity to say, that the evidence preserved in this record does not so strongly impress us with the guilt of the defendant as to incline us to the opinion that the substantial rights of the defendant have not been invaded by this erroneous ruling. On the contrary, we think as the case is one of fact entirely, and grave doubts may be fairly entertained, that the district court should have given the defendant the benefit of the doubt and sustained the motion for a new trial, for the reason that the jury was not fairly constituted.’
“Counsel stated to the jury that that was the language of the decision of the supreme court upon the evidence in that case.
“Thereafter, and in another part of this argument, said J. R. Burton read from the alleged libelous article: ‘He had no hope of being able to clear Cleary with a fair jury/ again took in his hands said report of the case of The State v. Cleary, and said to the jury, ‘The supreme court says that he has.’
“And again, in another part of his argument, said J. R. Burton again referred to said report and said expression of opinion in said report of said case, and said to the jury, ‘Cleary may have been guilty, or there may have been agrave doubt, as the supreme court says there was.’ ”
The judgment of the court below will be reversed, and the cause remanded for a new trial.
Concurrence Opinion
I fully concur in the reversal of the judgment of the district court; but I am not satisfied with all that is stated in the opinion. I do not agree with all the limitations placed on the publication of judicial proceedings or matters directly connected therewith. I think that every newspaper has a right to comment on matters of public concern, provided it is done fairly and honestly. I do not think that such comments are libelous, however severe in their terms, unless they are written and published maliciously. I think the administration of the law, the verdicts of juries, the conduct of suitors, their lawyers and witnesses, are all matters of lawful comment by newspapers as soon as the trial is over.
Attorneys at law are officers of the court in which they practice, and are admitted by its order, upon evidence of their possession of sufficient legal learning and good moral character; they hold their office during good behavior, and can only be deprived of it for misconduct. Therefore any attorney can be protected from libel for anything occurring upon a trial, or for any matter connected directly therewith, to the same extent as any other officer of the court. That, and nothing more.
Of course, if a publisher of a newspaper writes and publishes maliciously any false or libelous matter against an attorney, or any other officer of a court, there is no danger but that the publisher may be properly punished, even if express malice must be proved. The jury have the authority to take all the matters into consideration, and if express malice is established, or if malice is found from the circumstances attend
The case of The State v. Cleary was a public trial; the state and the people of the state were greatly interested in its result. If justice miscarried from the act or conduct of any officer of the court during the trial, it was a subject of legitimate newspaper comment. The jury could determine, under the facts and circumstances of this case, whether the comments of the newspaper were made from good or honest motives, upon reasonable grounds, or whether they were maliciously written and published. If the defendant in referring to the trial, or any matters directly connected with the trial, acted solely from good and honest motives, and upon reasonable grounds, he ought not, in my opinion, to be criminally liable.