Bearman v. People

• Decision Date: 31 October 1932
• Docket Number: 13055.
• Parties: BEARMAN v. PEOPLE.
• Court: Colorado Supreme Court

16 P.2d 425

91 Colo. 486

BEARMAN v. PEOPLE.

No. 13055.

Supreme Court of Colorado, En Banc.

October 31, 1932

Rehearing Denied Nov. 28, 1932.

Error to District Court, City and County of Denver; Robert W Steele, Jr., Judge.

L Bearman was convicted of criminal libel, and he brings error.

Affirmed.

W. Penn Collins, Guy D. Duncan, and J. H. Richard all of Denver, for plaintiff in error.

Clarence L. Ireland, Atty. Gen., and Wallace S. Porth, Asst. Atty Gen., for the People.

BUTLER, J.

L Bearman was found guilty of criminal libel, and was sentenced to imprisonment in the penitentiary for not less than eleven months nor more than twelve months. He seeks a reversal of the judgment.

1. One of the questions presented concerns the right of a defendant in a prosecution for criminal libel to introduce evidence tending to show absence of malice on his part.

(1) In civil actions for damages for a publication libelous per se, malice is presumed, and no burden rests upon the plaintiff to prove express malice. The defendant in such an action is permitted to introduce evidence to negative malice in two situations only: If the publication is one of qualified privilege, it is necessary for the plaintiff, in order to succeed, to prove actual malice on the part of the defendant; and the defendant, of course, may introduce evidence to the contrary. Where the plaintiff seeks exemplary damages, he can recover such damages only upon proof of actual malice upon the part of the defendant, or a reckless disregard by him of the plaintiff's rights and feelings (C. L. § 6307); and, in such case, the defendant, not as a justification, but for the sole purpose of mitigating exemplary damages, may introduce evidence to the contrary. Unless one of these situations exist, the defendant in a civil action for damages cannot introduce such evidence. In Republican Publishing Co. v. Conroy, 5 Colo. App. 262, at page 266, 38 P. 423, 425, it is said: 'In libel the law implies malice from the fact of the publication, but no actual malice may exist. The publication may be made in a belief of its truth, and without any desire or intention to do the aggrieved party an injury.'

(2) In a criminal case, exemplary damages have no place. After the defendant is found guilty, circumstances tending to negative express malice may be considered by the judge in mitigation of the penalty. In at least one state, the jury determine the penalty, and in such case evidence of the defendant's good faith and want of malice is admissible at the trial, not in justification, but to enable the jury to determine what penalty to impose. Alsup v. State, 91 Tex. Cr. R. 224, 238 S.W. 667. Such is not the case in Colorado, where the court, instead of the jury, determines the penalty to be imposed. In a criminal case, where the publication is qualifiedly privileged, the defendant cannot be convicted unless the existence of actual malice on his part is found by the jury, from the evidence, beyond a reasonable doubt; and, in such cases, as in civil actions, the defendant may introduce evidence to disprove malice. Where, however, the publication is libelous per se and is not qualifiedly privileged, no such evidence is admissible; the rule in this respect being the same in criminal cases as it is in civil actions. Discussing malice in criminal cases, Newell says: 'It is not necessary, to render an act malicious, that the party be actuated by a feeling of hatred or ill-will toward the individual, or that he entertain and pursue any general bad purpose or design. On the contrary, he may be actuated by a general good purpose, and have a real and sincere design to bring about a reformation of matters; but if in pursuing that design he wilfully inflicts a wrong on others which is not warranted by law, such act is malicious.' Newell, Slander and Libel (4th Ed.) § 274. Chief Justice Shaw uses similar language in Commonwealth v. Snelling, 15 Pick. (Mass.) 337. 'In libel and slander suits, where no question of privilege arises, it is quite sufficient if malice in law is shown, although if both these elements appear the existence of the former would probably be taken into account in awarding punishment. * * *' Newell, § 276. In 37 C. J. p. 141, the law in criminal cases is stated thus: 'Defendant cannot show in defense current rumors or suspicions, * * * belief in the truth, probable grounds for his belief, an honest mistake in the facts, an innocent intention, * * *.' In 8 Ency. Evid. p. 196, it is said: 'Unless the occasion were privileged, this presumption of legal malice is conclusive in so far as such malice is necessary to support the action, and evidence of the defendant's good motives and intention is not competent to defeat a recovery, but only to mitigate exemplary damages by negativing actual malice, or in support of a claim of privilege.' And at page 197: 'This presumption of malice applies to prosecutions for criminal libel or slander.' And in State v. Brady, 44 Kan. 435, 24 P. 948, 949, 9 L.R.A. 606, 21 Am.St.Rep. 296, it is said: 'In prosecutions for libel, malice is inferred from the nature of the charge, and, when the publishing of words libelous per se is once proven, malice is inferred, as a person is presumed to have intended the consequences of his own acts. * * * The want of actual intent to vilify is no excuse for a libel; and if a man deems that to be right which the law pronounces wrong, the mistake does not free him from guilt.' And see Alsup v. State, 91 Tex. Cr. R. 224, 238 S.W. 667; State v. Mason, 26 Or. 273, 38 P. 130, 26 L.R.A. 779, 46 Am.St.Rep. 629; State v. Wait, 44 Kan. 310, 24 P. 354; State v. Cooper, 138 Iowa 516, 116 N.W. 691; Richardson v. State, 66 Md. 205, 7 A. 43.

(3) Bearman's counsel claim that the publication was qualifiedly privileged, that the question of express malice, therefore, was an issue to be submitted to the jury, and that the offered evidence tending to show good faith should have been received. 'A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having corresponding interest or duty, although it contains incriminatory matter, which, without this privilege, would be slanderous and actionable; and this, though the duty be not a legal one, but only a moral or social duty of imperfect application [obligation].' Melcher v. Beeler, 48 Colo. 233, 241, 110 P. 181, 184, 139 Am.St.Rep. 273. But the privilege, if abused, is lost. 'Generally, the privilege may be lost if defendant, in regard to the persons to whom the publication is made, goes beyond the limits which his own protection or his duty requires. The privilege is lost if strangers to the privileged occasion were present by the invitation or design of defendant.' 36 C. J. p. 1248.

The publication involved in this case was a bitter attack upon Dr. Bronfin and others. It accused Dr. Bronfin of criminal and immoral acts in connection with his management of two Jewish hospitals, which accusations the jury found to be false. The communication was in the form of an open letter addressed to the president of the National Jewish Hospital for Consumptives. Instead of confining the communication to the officers of that institution, and others, if any there were, having an interest or duty with reference to the matter, Bearman, according to his admission under oath, distributed 10,000 printed copies. Part of them he sent by mail and part he personally placed upon doorsteps. He knew some of the persons at whose houses he left them, but most of them, he says, he did not know. These facts were not only not disputed, but were established by Bearman's own testimony. As a matter of law, in such circumstances, the qualified privilege, if any existed prima facie, was lost by such excessive publication. Therefore, there being no qualified privilege in the case, the evidence offered by Bearman to negative malice was properly rejected, as we have shown in another part of this opinion.

2. The publication charged not only Dr. Bronfin, but other persons, with serious misconduct; indeed, it was a general attack upon those concerned in the management of the two hospitals, and also upon courts and insanity experts.

(1) It is said that the indictment is bad for duplicity in that in one count it charges that Bearman libeled several persons. The objection results from a failure to note the distinction between civil actions and criminal prosecutions for libel. The purpose of the former...