Benton v. State

• Decision Date: 01 March 1897
• Citation: 59 N.J.L. 551,36 A. 1041
• Parties: BENTON et al. v. STATE.
• Court: New Jersey Supreme Court

36 A. 1041

59 N.J.L. 551

BENTON et al.

v. STATE.

Court of Errors and Appeals of New Jersey.

March 1, 1897.

(Syllabus by the Court.)

Error to supreme court.

Edward M. Benton and Joseph H. Hall were convicted of libel, and bring error. Affirmed.

Howard Carrow and William J. Kraft, for plaintiffs in error.

Wilson H. Jenkins, for the State.

HENDRICKSON, J. This writ brings up from the supreme court, for review, a judgment of that court affirming a conviction of the plaintiffs in error in the court of quarter sessions of Camden county, upon an indictment for libel based upon a publication in the Camden Citizen, a newspaper belonging to the plaintiffs in error, published in the city of Camden. The newspaper article, as described in the indictment, reads as follows:

"Catching a 'Fiver.'

"An Officer Successfully Works the Extortion Act. Making Dollars out of Drunks. Amos Mason's Fine of $3.67 Swelled by Five Dollars, and the Difference Pocketed. The Officer Knew He Had Money Hidden.

"Does Camden need a Lexow investigation? It certainly does. Here is one isolated case, of which the proofs are freshly in the possession of the Citizen. There are, beyond all doubt, hundreds of others. Amos L. Mason, an oyster and fruit dealer of 2265 Howard street, Philadelphia, was locked up in this city for intoxication on Monday, November 26. His fine was fixed by Mayor Wescott at $3.67. His family, however, paid $8.67 to an officer to get the old man out; yet only $3.67 of that amount found its way into the hands of the mayor. These two statements are printed upon the story of Mrs. Mason, a daughter-in-law of the arrested man, who will substantiate under oath, and upon the showing of the police records, which were specially consulted, and the statement made that only $3.67 was imposed and collected.

"Picked up a 'Periodical.'

"There is no possibility of doubt that Mason was drunk, but he was making his way to the Shackamaxon Ferry, en route for home. Mason is erratic, and goes on a periodical spree about once a year or at longer intervals. On Saturday, November 24, he provided himself with $50, and came to Camden. It was Monday morning when he fell into the clutches of Officer Kappel, of the First ward, and sent to the hall. At this point commences the story: Mason had run through his money, and had no cash to pay the $3.67. He was sent back to the lockup, but his anxiety to regain his liberty induced him to impart to the officer who arrested him that he had over $100 hidden behind a brick in the wall of his banana cellar. This was one of the old man's peculiarities, of which his family were aware. Mason wanted to get out, and the officer consented to go to his home and get it.

"Finding the Money.

"Two men walked into the oyster shop at 2265 Howard street on Monday afternoon. One was heavy set, of ruddy complexion, and wore a knit jacket and a star. The other seemed to be his friend. Young Mrs. Mason met him. 'Mr. Mason at home?' they asked. 'No; he isn't.' 'Have you got a banana cellar here?' was the next question. The star, the old man's periodical sprees, and his habit of secreting money in the cellar, resulted in a quick conclusion by Mrs. Mason. 'He's locked up, and you've come for money,' she exclaimed. What is the fine?' 'Eight sixty-seven,' was the reply. 'I don't think I have so much. My husband will be here shortly, and he will fix it.' 'Oh! there is money in the cellar.' 'Do you know where it is?' 'Yes; it's up in a joist over some lemon boxes.' The money could not be found there, and the men were called to look for it. They did not go near the boxes, but dove under the steps, and, pulling a brick, drew out a big roll of bills. Then they wanted to take it all over to Camden, but Mrs. Mason stopped that, and, taking the money in her apron, paid them the $8.67, and added the amount of their fare over. 'Don't you think it's worth something for our trouble?' 'How much do you think would be right?' 'About a dollar apiece.' 'Who arrested him?' 'I did,' replied the man with the star. 'Well, I'll go over, and see about it myself,' decided Mrs. Mason, and put her things on, despite the efforts of the men to dissuade her. 'It was a fool's errand,' they said, and 'he would get out all right.' But she came over. She states that she overheard a whispered remark not intended for her ears, to the effect that she was too smart for them.

"Not Fit for the Force.

"Arriving at the hall, the officer settled the fine while she waited. Mason also paid another man's fine, out of other money brought over by his daughter-in-law. This exposed the fact that the usual fine was $3.67. Mrs. Mason states that the officer paid $3.67 for her father's fine, and kept $5 for himself, besides his expenses. It's more than likely that Mayor Wescott is not aware of this little transaction. If not, he has only to look into the matter to verify these facts. An officer may be good in every other way, but, if he resorts to extortion of this kind, the police force is not the place for him. He is a fit subject for a Lexow committee, and of his fate in such hands there is no doubt, and he has only himself to thank."

The legality of the conviction is now challenged under the errors assigned, because the trial court refused the motions that were made to quash the indictment and arrest the judgment, and also for alleged errors in the charge, and in refusing certain evidence offered.

In support of the first ground of challenge, it is insisted that the indictment fails to disclose upon its face the offense of criminal libel, in that the language imputed to the plaintiffs in error is not libelous per se, and, not being libelous per se, is not so explained by the insertion of the necessary innuendoes as to render the publication libelous. No exception is taken to the general form of the indictment, which charges in the usual language the publication of the alleged libel by the plaintiffs in error. It charges, among other things, that the publication complained of was made of and concerning George Kappel, a police officer of the city of Camden. It is perceived that by its headlines the article charges, in substance, that the officer in question was guilty of extortion, in swelling a prisoner's fine of $3.67, for being drunk, by adding $5 thereto, and pocketing the difference. It would seem proper, in determining whether a publication is libelous per se, that the headlines of the article should be considered, and it has been so held. Landon v. Watkins (Minn.) 63 N. W. 615. In giving the details of the story, the officer is charged with obtaining from the daughter-in-law of the prisoner the $5 in addition to the fine, by the false and fraudulent pretense that the fine was greater by $5 than it in fact was. The whole story, if true, indicated that the officer had been guilty of conduct not only criminal, but dishonest and disgraceful, to an extent that would justly expose him to the scorn and contempt of every good citizen. It is the language of authority that any written or printed words are libelous which impute to a person that he has been guilty of any crime, fraud, dishonesty, immorality, vice, or dishonorable conduct, or which have a tendency to injure him in his office, profession, calling, or trade. The charges made by this article are so clearly within the range of criminal libel, as thus defined, that further discussion on this point seems unnecessary.

It is equally plain that no valid objection lies to the fact that there are no Innuendoes set forth in this indictment in connection with the libelous words. The office of an innuendo, in such a connection, is to express and render certain the meaning of equivocal or uncertain language, or to bring out some latent meaning in the words, necessary to fix their defamatory character. It has a further office, to explain to whom the defamatory language refers where that is left uncertain without it. But the doctrine is well settled that, when the plain, natural meaning of the words is libelous, no innuendo is required. State v. Mott, 45 N. J. Law, 496; Eex v. Burdett, 4 Barn. & Ald. 314; Hoare v. Silverlock, 12 Adol. & E. (N. S.) 624; Croswell v. Weed, 25 Wend. 621. And, where written or printed matter in itself imports a libel on a person, no statement of extrinsic circumstances, by way of inducement, is necessary. It is no objection, therefore, in arrest of judgment, that words are not explained by an innuendo, where they are commonly enough understood in a libelous sense to warrant a jury in so applying them. 1 Kuss. Crimes (9th Am. Ed.) 353. Judged by this rule, it will appear that no innuendoes were required to render this publication libelous; and since the article itself mentions Officer Kappel, of the First ward, as the officer who made the arrest in question, and whose alleged extortion is thereby held up to the scorn of the public, there is clearly sufficient, on the face of the indictment, from which the jury might reasonably infer that the libelous words were aimed at the officer named. There was no error, then, in the trial court's refusal to quash the indictment or to arrest the judgment on the grounds alleged.

It may be added that in view of our constitutional provision (article 1, § 5) making the jury the judges of the law, as well as the fact, as to whether the language...