42 Neb. 123 | Neb. | 1894
Vallery was convicted in the district court of Saunders county of writing and publishing of and concerning one Eliza King the following:
“April 18, 1891. School District No. 49, Saunders County, Neb. Charges made by one Henry W. Vallery against Eliza King. * * * Also, Eliza King did tell one Henry W. Vallery that she did commit adultery with one George R. Hassenplug, and one Will Morrow, and one Will Larue, one Col. Odell, and one E. Emphrey, one George Essex, one Gene Key, one Joe Samic, one Will Emphres. I, Henry W. Vallery, will swear that this is true to the best of my belief and knowledge.
“Henry W. Vallery.”
The evidence tended to show that prior to the publication of the writing, which formed the basis of the information, Vallery had made similar oral statements to neighbors of Miss King. Miss King was a school teacher employed in district 49 of Saunders county. A meeting of the school district was called for the purpose of taking some action on the charges which had been circulated. The precise object of the meeting is generally stated by the witnesses to have been to procure the formulation in writing of any charges
Tlie defendant requested several instructions, presenting his theory of the case as above stated. These were refused. The court of its own motion instructed the jury that if the complaining witness, or any one acting for her, requested Vallery to appear at the meeting for the purpose of reducing the charges to writing, then this would create a case of privilege; but if the jury should further find that the defendant’s acts at the meeting were not in good faith for the purpose of discharging a duty, but that he was actuated by express malice, then he would nevertheless be guilty. The defendant, in support of his view of the law, cites King v. Waring, 5 Esp. [Eng.], 15; Weatherston v. Hawkins, 1 T. R. [Eng.], 110; Smith v. Wood, 3 Camp. [Eng.], 323. These were all civil cases. In King v. Waring the alleged libel was contained in a letter written in response to an inquiry as to the character of a servant. The court said that the issue was that in consequence of the letter the plaintiff was prevented from getting a place, and if the letter of inquiry was written, not with a fair view of inquiring as to character, but to procure an answer upon which to ground an action for libel, no action could be sustained. Weatherston v. Hawkins was a similar case, and in that we find the opinions of Lord Mansfield and of Mr. Justice Buller, both to the effect that the communication was privileged and that no malice was shown. Smith v. Wood involved only the question as to whether the exhibition to a third person of a caricature at the request of such third person was sufficient evidence of publication to support a civil action. Lord Ellenborough held, without-an opinion, that it was not. None of these cases supports the contention of the defendant, and we are not aware that there exists,-in the law of criminal libel at any rate, any doctrine akin to that of contributory negligence, whereby a prose
As to the sufficiency of the evidence little need be said. The proof adduced of the circumstances surrounding the case, and especially the vile and abusive language used by Vallery in testifying, convinces us, as it convinced the jury, beyond a reasonable doubt, that he was actuated by malice.
We are asked in case of affirmance to determine that the sentence was excessive and to reduce it accordingly. The trial judge imposed the extreme penalty allowed by the statute, — a fine of $500 and imprisonment for six months. We certainly cannot say that this punishment is excessive. We cannot readily conceive a libel of greater enormity than that of which the jury has found Yallery guilty. It may well be doubted whether our statutes in this regard provide penalties of sufficient severity to meet the ends of justice and prevent the defamation of character. We think this defendant may well congratulate himself that the law did not permit a more severe penalty to be inflicted.
Judgment affirmed.