Bee Publishing Company v. State

• Decision Date: 17 November 1921
• Docket Number: 21314,21315
• Citation: 185 N.W. 339,107 Neb. 74
• Parties: BEE PUBLISHING COMPANY v. STATE OF NEBRASKA. VICTOR ROSEWATER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

185 N.W. 339

107 Neb. 74

BEE PUBLISHING COMPANY v. STATE OF NEBRASKA.

VICTOR ROSEWATER v. STATE OF NEBRASKA

Nos. 21314, 21315

Supreme Court of Nebraska

November 17, 1921

ERROR to the district court for Douglas county: WILLIAM A. REDICK JUDGE. Reversed in part, and affirmed in part.

REVERSED IN PART, AND AFFIRMED IN PART.

Rosewater Cotner & Peasinger and W. J. Connell, for plaintiffs in error.

Clarence A. Davis, Attorney General, Abel V. Shotwell, County Attorney, and C. L. Dort, contra.

Heard before MORRISSEY, C.J., DEAN, FLANSBURG and LETTON, JJ. DAY J., not sitting.

OPINION

DEAN, J.

On November 11, 1919, the Bee Publishing Company, a corporation, Victor Rosewater, and John H. Moore, defendants, were jointly informed against by the county attorney for Douglas county, under section 8236, Rev. St. 1913, and charged with a wilful attempt to obstruct the proceedings and hinder the due administration of justice in a suit, then lately pending and undetermined, by the publication of a certain article in the Omaha Sunday Bee, November 9, 1919. Moore was acquitted, but the Bee Publishing Company and Rosewater were both found guilty of contempt and were each separately fined $ 1,000 and costs. They have brought the case here for review.

The exhibits and the evidence tend to show that the facts out of which this suit arose, and which form the basis of the newspaper story in question, are substantially these:

On the afternoon and night of Sunday, September 28, 1919, the Douglas county courthouse in Omaha was beset by a riotously assembled mob made up of several thousand persons who came together for the unconcealed purpose of lynching an inmate of the jail, who was suspected of having made an attempt to commit a heinous offense against a defenseless woman. The mob overpowered the police force and other of the city officials, all of whom were assisted by many law-abiding citizens, but to no avail, in an endeavor to restore order. The object of the mob's fury was seized and lynched, the courthouse was fired and in large part destroyed, and with it most of its contents, before the mob dispersed. Within a short time after the fire, namely, November 6, 1919, John H. Moore, a Bee reporter, was indicted by a grand jury specially called by the district court to inquire into the facts leading up to and connected with the riot and the fire. The indictment charged Moore with conspiring with others to commit arson. Two boys, named Morris and Thorpe, were suspected of being implicated in the riot and were arrested. While under arrest they testified before the grand jury and informed that body that they saw Moore, on the afternoon of the riot, leading a gang of boys to the courthouse, carrying gasoline and oils for the purpose of aiding in the conflagration. It was mainly on this evidence that the indictment against Moore was based.

Subsequently, and while the Moore case, pursuant to the indictment, was pending and undetermined in the district court, Morris and Thorpe furnished affidavits which in effect stated that their testimony before the grand jury with respect to Moore was false, and that it was obtained by coercion and intimidation practiced upon them, while under arrest, by certain members of the Omaha police force, and by promise of immunity from prosecution. The article that is set out in the information and that appears as an exhibit in the Omaha Bee of Sunday, November 9, 1919, and other like exhibits, purport to give an account of some of the circumstances attending the fire and the alleged unfair methods under which the testimony that implicated Moore was obtained. The article, or newspaper story in question, covers about two columns of the newspaper exhibit of Sunday, November 9, and about six pages of legal cap in the information. It is too extended to be fully reproduced in this opinion.

The following headlines that precede the article that is incorporated in the information are in large display type:

"Boys Disclose the Frame-up--Promised Freedom by Police--Captain Haze Offered Liberty to Prisoners for False Testimony Before Grand Jury, They Declare in Affidavits--Rotten Police Methods Laid Bare by Youths--Admit They Never Saw Bee Man They Testified Against Until After Case Had Been Framed by Detectives." The excerpts in ordinary brevier type follow:

"Captain of Police Henry P. Haze 'framed up' the malicious and false testimony submitted to the grand jury upon which J. Harry Moore, reporter for the Bee, was indicted Friday, on a charge of conspiracy to commit arson in connection with the riot of September 28th. This statement was made to a reporter for the Bee, in the county jail yesterday by Ernest Morris and Harold Thorpe, confessed members of the mob, upon whose evidence the indictment against the reporter was returned. Both Morris and Thorpe made affidavits to the effect that Haze prevailed upon them to perjure themselves in order to convict Moore, whose investigations as a newspaper man have resulted in sensational and startling revelations against the Omaha police department, upon a promise that they would not be required to serve their full sentences in jail for rioting. * * * They were told they would be released from jail as soon as the reporter had been tried and sent to the penitentiary. When the boys told Captain Haze they never had laid their eyes on the Bee reporter, the policeman replied that he would arrange it so they could see the man."

The article goes on to say that the boys changed their minds, and that Morris informed a reporter that after they got to thinking about it in jail they agreed they "did not want to be a party to a frame-up on an innocent man," and decided to "expose Captain Haze and the other detective." The writer of the article then observed that the other witness who testified against reporter Moore before the grand jury was a notorious bootlegger and a former policeman. Then follow the affidavits of Morris and Thorpe, that were printed as a part of the objectionable article, that purport to substantiate the foregoing statements, and many other statements of like import that appear in the article in question. Besides the foregoing excerpts, the article elsewhere, as it appears in the information, proceeds to vilify the police department generally, and the police officers who testified before the grand jury, and who would of necessity be witnesses at the coming trial against Moore in the district court. It proceeds to say that whether the police commissioner or the chief of police "had a hand in the frame-up on the reporter (Moore) Morris and Thorpe were unable to say." Continuing, the article observed that the commissioner always approved of Captain Haze's methods, and that the chief of police was known to have offered to promote a certain police officer if he succeeded in "getting" the Bee reporter.

Taylor Kennerly was the managing editor of the Bee when the objectionable article was published, and as the head of the editorial department he directed the news policy of the paper. He said that Rosewater never gave him any orders with respect to his work, and if he, the witness, was absent the city editor or the news editor determined what articles should appear. He testified that as a general proposition a communication or a reporter's story, before publication, was edited by either one of six or seven men called copy readers, day editors, night editors, or telegraph editors.

It plainly appears that the article seriously reflected upon the integrity of the witnesses who appeared before the grand jury and who would in all probability testify in the district court. It took sides as between the state and the defendant and opinions in respect of the merits were expressed. Violent comment was indulged in respecting the evidence, and the innocence of the accused was declared. Upon its face it is apparent that a bold attempt was made to mold public opinion favorable to Moore in advance of his trial, the Bee having an extensive circulation, not only throughout the state, but in the city and in Douglas county as well, the vicinity from which the jurors would be drawn and before whom Moore would be subsequently tried. Clearly an inflammatory harangue, in the locality where the trial was to be had, so worded, would tend to hinder the due administration of justice. That a publication so worded and so circulated, under the circumstances that prevailed at the place of its publication, constitutes constructive contempt of court is well settled. 6 R. C. L. p. 508, sec. 20, p....