Banner Publ'g Co. v. State

• Decision Date: 31 December 1885
• Citation: 84 Tenn. 176
• Parties: The Banner Publishing Company et al. v. The State.
• Court: Tennessee Supreme Court

84 Tenn. 176

The Banner Publishing Company et al.

v.The State.

Supreme Court of Tennessee.

December Term, 1885.

FROM DAVIDSON.

Appeal in error from the Criminal Court of Davidson County. N. W. MCCONNELL, J., sitting by interchange.

TULLY BROWN, T. E. MATTHEWS and C. D. PORTER for Banner Company.

ATTORNEY-GENERAL LEA and JNO. V. WRIGHT for the State.

COOPER, Sp. J., delivered the opinion of the Court.

The indictment in this case charges the defendants with libel. There are three defendants, the Banner Publishing Company (a corporation), A. L. Landis, Jr., and G. H. Baskette. The article on which the indictment is based, was published in the Nashville Banner on January 26, 1885, and at that time Landis and Baskette were the editors and publishers of the newspaper. The alleged defamatory article is entitled “The Tennessee Tewksbury,” and deals with the State prison and its management. There are four counts in the indictment. The first charges the publishing company with libeling Jas. E. Carter, F. S. Harris, and Deering J. Roberts, they being, respectively, the superintendent, warden and physician of the penitentiary.

The second count charges defendants Landis and Baskette with a like offense.

The third count charges the publishing company with libeling Deering J. Roberts; and the fourth charges Landis and Baskette with a like crime.

The jury returned a verdict of guilty against all the defendants, and assessed their fine at fifty-one dollars. His Honor, Judge McConnell (sitting by interchange with Judge Allen), overruled the motions in arrest of judgment and for new trial, and entered judgment, and defendants bring the case to this court in the usual mode.

If the charge of the court is correct, it is not seriously insisted that the verdict is not sustained by the evidence. It is therefore not necessary to refer to the evidence and the publication complained of at length. It is sufficient to say of the publication, that it vigorously denounced the management of the State prison, and the abuses alleged to be incident thereto, and imputed the grossest dereliction of duty, if not positive crime, to its officials, or to some of them. It is not insisted here that the publication was not libelous, if the court below was correct in its rulings upon the evidence, and in the charge to the jury.

His Honor ruled that no evidence could be introduced as to abuses existing in the prison prior to the terms of the officials incumbent when the publication was made. This he did for the reason that the article was written in the ““present tense,” and showed on its face that it was leveled against existing abuses. Under these circumstances, he thought the line should be drawn with the beginning of the terms of the incumbent officials; that they were, in no sense, responsible for acts occurring under their predecessors; that if the line was not drawn somewhere, evidence could be introduced of what occurred from the origin of the penitentiary. These incumbents, Carter, Harris and Roberts, had been officers of the prison about two years when this publication was made, one of them something less than that time. Defendants insist that this ruling was erroneous, but we do not see that his Honor committed any error in this respect. The publication was addressed to abuses then existing, or alleged to exist, and in justification of the publication, it certainly would not be relevant to prove what existed many years before, under some administration of the prison with which the complaining witnesses were not connected. Whether this testimony, in our view, was competent from another standpoint, will appear further on.

It is argued by the counsel of defendants, that the court erred in charging the jury that if they found, from the proof, certain things to be true, then the publication would be prima facie a libel. The court told the jury that they would examine all the proof and ascertain whether the publication meant the prosecuting witnesses, and if it did it would be prima facie a libel. As an illustration of the character of the charge on this subject, we quote from it. After telling the jury they must look to all the proof to ascertain who was meant, etc., his Honor adds: “If it means to impute cruelty and inhumanity to the prosecuting witnesses, then you are to consider it, with all the rest of the article, in determining whether defendants are guilty. To charge them with having murdered the convicts, and with not treating them as human beings, would be prima facie libelous.” This quotation furnishes a fair sample of the other portions of the charge bearing upon this question, and there is no error in this instruction. It is generally laid down in the authorities, that it is the province of the court to tell the jury whether a publication is prima facie libelous or not; to determine the construction of the language published, and say whether or not, upon its face, it is actionable or indictable per se: Townsend on Slander and Libel, sec. 286, and authorities there cited; Palmer v. Concord, 48 N. H., 216;Lynn v. Guild, 5 Heis., 183; Stephens on Plead., 382; Williams v. Norwood, 2 Yer., 330. But on a plea of not guilty, whether the defamatory matter was published concerning any particular individual, or whether that individual was intended, is a question of fact for the jury: Townsend on Slander and Libel, sec. 286. In this case, the court particularly instructed the jury that they must determine, from all the proof, whether the article was published of the prosecuting witnesses, and whether they were meant to be referred to. He also charged that the jury were the judges of the law, as in other criminal cases. His Honor did not usurp the special province of the jury, to-wit, to determine the facts; and on the points complained of by the defendants, as above indicated, he was clearly within the limits of his authority.

It is the duty of the court, as a general rule, to construe any written or printed instrument or paper offered in evidence. This was expressly so held by this court, at its present term, in the case of Gallatin Turnpike Company v. The State, 16 Lea, 36. In that case, the controversy was, whether a certain bridge was within or without the territorial limits of the town of Gallatin. The circuit judge had left the fact to the jury, without construing the act defining the limits of the town. It was holden that he should have construed the act and told the jury where it fixed the boundaries of the town.

But the main point urged by defendants for a reversal is, that the publication in question, as a matter of law under the facts, was privileged, and that the court below refused to so charge the jury, but on the contrary, expressly charged that the law of privileged communications, or communications ““conditionally privileged,” did not apply to this case. And this brings us to the consideration of the most serious question in the case; a question, the grave importance of which, we fully appreciate. The contention is, that the public press and individuals can discuss the conduct and character of officers and candidates for office, without incurring liability, civil or criminal, for defamatory utterances published, provided such publications are made without malice, and upon probable grounds. If this be true, the charge of his Honor to the jury in the trial court is erroneous.

The nineteenth section of our bill of rights is this: “That the printing presses shall be free to every person to examine the proceedings of the Legislature, or of any branch or office of the government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of men, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. But in prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, the truth thereof may be given in evidence, and in all indictments for libel, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other criminal cases.”

Whatever rights and privileges are reserved and secured to the citizen under this provision of the organic law must be sacredly preserved. But it has not been insisted directly, that the right contended for by the defendants is secured to them by our Constitution, but rather by the law of libel, correctly understood, expounded and applied. Still, we have set out this provision of the declaration of rights as a land-mark to guide us in reaching a just and true view of the subject under consideration. If we see that we are infringing upon rights therein reserved, we may well pause. On the contrary, if we see that the invaluable privileges there guaranteed are not encroached upon, but still remain intact and unimpaired in their integrity, we may feel, at least, that the freedom of the press and free speech still exist in their constitutional strength and vigor, and that we have not reached a conclusion subversive of the fundamental rights of the citizen.

The law of libel on the subject of privileged communications, is involved in considerable uncertainty. There is more of conflict and doubt than on many other questions affecting personal rights. It is very easy to determine that certain communications are privileged, as it is called, but we soon reach a point where doubt and uncertainty begin, and here we must proceed with caution and due deliberation, lest we declare what is fallacious in principle, and establish precedents destructive of individual rights and injurious to the public welfare.

In this State, we have had no decision directly upon the point at issue in the case before us, and we are left to adopt whatever rule (within the limits of the Constitution) that appears to us to be best sustained by reason. And especially do we feel at liberty to...