Boucher v. Clark Pub. Co.

• Decision Date: 21 November 1900
• Citation: 84 N.W. 237,14 S.D. 72
• Parties: BOUCHER v. CLARK PUB. CO.
• Court: South Dakota Supreme Court

84 N.W. 237

14 S.D. 72

BOUCHER v. CLARK PUB. CO.

Supreme Court of South Dakota

November 21, 1900

Appeal from circuit court, Clark county; Julian Bennett, Judge.

Action by Josiah Boucher against the Clark Publishing Company for libel. From a judgment for plaintiff, defendant appeals. Reversed.

S. H Elrod, Wm. McGaan, and C. G. Sherwood, for appellant. S. A Keenan, F. G. Bohri, and F. E. Strawder, for respondent.

HANEY J.

It is alleged in the complaint that on October 6, 1898, defendant published of and concerning the plaintiff, who was the sheriff of Clark county, and a candidate for re-election, the following false, scandalous, and defamatory matters: "It is known that Sheriff Boucher is staking his hope of re-election upon obtaining votes through promises of putting men on the jury at the December term of court and afterwards. It is stated upon reliable authority that within the last few days he has approached several Republicans, and offered to put them on the jury at the December term of court if they would vote for him. Last week he approached a prominent Republican in this county, and offered, if he would vote for him and help elect him this fall, Mr. Boucher and his friends would assist in electing this Republican two years from now as sheriff of this county. It is also generally understood that Mr. Boucher obtained delegates in some of the townships by pledging men he placed on juries and in other positions at the last term of court to attend the caucuses in their townships and vote for delegates who would work for him for sheriff. Mr. Boucher has always been profuse with this class of promises, and he may be able to fool some people with them this year, but he has promised twenty persons where he can perform with but one."

In discussing the issues involved in this action, it should be constantly borne in mind that the right of protection from defamation in this state is subordinate to the following fundamental principles: "Every person may freely speak write and publish on all subjects, being responsible for the abuse of that right. In all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense. The jury shall have the right to determine the fact and the law under the direction of the court." Const. art. 6, § 5.

Defendant's objection to the introduction of any evidence, on the ground that the complaint does not state facts sufficient to constitute a cause of action, was overruled. Respondent concedes that, as no special damage is pleaded, the complaint is fatally defective, unless the language employed by defendant is libelous per se. Assuming, as counsel seemed to, that the statutes of this state relating to slander and libel prescribe no rules for determining what language is in itself actionable, resort will be had to the common law in deciding whether actual injury should be presumed in this case. There is abundant authority for the following statement: "Any publication which imputes to a person the commission of a criminal offense, which will, in case the imputation or charge is true, subject the party charged to punishment for a crime involving moral turpitude, or subject such party to an infamous punishment, is actionable in itself, when published orally, and hence, when expressed otherwise than by oral language, is a libel." Newell, Defam. 67. While language not embraced in the foregoing might be libelous per se, it is confidently believed that any publication which falls clearly within the terms of this definition should be regarded as prima facie actionable. An act to preserve the purity of the ballot, and to punish crimes committed against the elective franchise, passed in 1891, contains the following:

"Section 1. It shall be unlawful for any person, directly or indirectly, by himself or through any other person: *** Second. To give, offer or promise any office, place or employment, or to promise to procure or endeavor to procure any office, place or employment to or for any voter, or to or for any other person, in order to induce such voter to vote or refrain from voting at such election, from [for] any particular person or persons."

"Sec. 7. Whoever shall violate any of the provisions of this act shall, upon conviction thereof, be punished by imprisonment in the county jail for not less than three (3) months nor more than one (1) year. The offenses described in sections one (1) and (2) of this act are hereby declared to be infamous crimes. When a person is convicted of any offense mentioned in sections one (1) and two (2) of this act, he shall in addition to the punishment above described, forfeit any office to which he may have been elected at the election with reference to which such offense was committed, and shall in addition be excluded from the right of suffrage for a period of five (5) years after such conviction, and it shall be the duty of the county auditor or county clerk of the county in which such conviction shall be had to transmit a certified copy of the record of conviction to the auditor or clerk of each county in this state within ten (10) days thereafter, which said certified copy shall be duly filed by the said county auditor or clerk in their respective offices." Laws 1891, c. 58, §§ 1, 7.

Without considering whether the legislative declaration as to the character of the crimes defined in this statute is conclusive upon the courts, or the power of the legislature to impose the punishments prescribed therein, we have no hesitancy in holding that the offense defined in the second paragraph of the first section is one involving moral turpitude. "Everything done contrary to justice, honesty, modesty, or good morals is said to be done with turpitude." 2 Bouv. Law Dict. 752. In one sense it is morally wrong to violate any rule of conduct prescribed by the sovereign power, but we understand the true test of moral turpitude in this connection to be whether the forbidden acts would be regarded as contrary to good morals in the absence of any statute on the subject. Certainly it is not morally right to purchase votes with money, and in principle there is no difference between purchasing votes with money, and purchasing them with promises of place or employment. We think the foregoing statute defines a crime involving moral turpitude, and that the language published concerning the plaintiff charges him with the commission of such crime. Therefore the complaint states a cause of action.

Before the trial began the court, on motion of the plaintiff, struck out certain paragraphs of defendant's first amended answer as sham, irrelevant, and redundant, to which ruling the defendant duly excepted, whereupon, by order of the court, defendant filed its last amended answer. It is contended that the court erred in striking out these portions of defendant's first amended answer. The question is not before us, for the reason that after the motion had been allowed by the court the defendant filed an amended answer. This was a waiver of all questions touching the former answer, and of the rulings of the court in relation thereto. Hexter v. Schneider, 14 Or. 185, 12 P. 668; Gale v. James, 11 Colo. 540, 19 P. 446; Gale v. Foss, 47 Mo. 276; Wells v. Applegate, 12 Or. 208, 6 P. 770; Kentfield v. Hayes, 57 Cal. 409.

The court having overruled defendant's objection to the introduction of any evidence, the plaintiff testified that he resided at Clark, and was sheriff of Clark county, and the person designated as "Sheriff Boucher" in the article referred to in his complaint. Thereupon defendant admitted that the plaintiff was the duly-elected, qualified and acting sheriff of Clark county; that when the article was published he was a candidate for re-election; and that the defendant is incorporated as alleged in the complaint. Then the following questions were asked the plaintiff on cross-examination, to which he objected, and the objection was sustained: "Q. Mr. Boucher, did...