Brooke v. State

• Decision Date: 08 July 1907
• Citation: 154 Ala. 53,45 So. 622
• Parties: BROOKE v. STATE.
• Court: Alabama Supreme Court

45 So. 622

154 Ala. 53

BROOKE v. STATE.

Supreme Court of Alabama

July 8, 1907

Rehearing Denied Feb. 6, 1908.

Appeal from Circuit Court, Crenshaw County; J. C. Richardson, Judge.

Prosecution of H. Y. Brooke for libel. From a judgment overruling defendant's demurrer to the complaint, and sustaining demurrers to special pleas of defendant, he appeals. Affirmed.

Tyson C.J., dissenting in part.

The defendant was tried for publishing a libel which tended to produce a breach of the peace. The information filed by the solicitor in the case is set out in the opinion of the court.

The demurrers filed thereto are as follows: "(1) Said statement or complaint fails to aver that the alleged libelous matter is false. (2) It fails to aver that the said libelous matter is not true. (3) That it is false and malicious. (4) That it fails to aver that the matter was injurious to Sharp. (5) It fails to aver that the words or language alleged to have been published by defendant is false and malicious. (6) It fails to aver that the language or words are untrue. (7) It fails to aver that they are malicious. (8) It fails to show with certainty the subject-matter of said alleged libelous language. (9) It shows on its face that the language set out therein is not all that was published in said newspaper article, but that it is only a portion of said article. (10) It shows on its face that all of said article is not set out. (11) It fails to show in what connection the language set out was used. (12) It purports to set out an article alleged to have been published in a newspaper, but fails to show the said article in its entirety is set out therein. (13) It fails to allege the time or place when said alleged libelous matter was published. (14) It fails to aver the day when said libelous matter was published. (15) It fails to aver the place where the said matter was published."

The special pleas interposed by the defendant, and to which demurrers were sustained, set up the fact, first, that the matter published was true, and that the comments thereon were justified by the truthfulness of the matter published second, that the publisher was justified in using the language set out in the complaint, which had reference to the report of the county superintendent of education of Crenshaw county, which had been filed in the office of the State Superintendent of Education; third, because the language was used in criticism of a public official by the publisher of a newspaper, and was justified by the truthfulness of the fact fourth, that it was not malicious; fifth, that it was not unlawful; sixth, that the language set out is not such as tended to provoke a breach of the peace.

The other facts are sufficiently stated in the opinion of the court.

M. W Rushton and Holloway & Brown, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DOWDELL J.

It appears from the record that this case was appealed from the county court to the circuit court. In the latter court it was tried on a complaint filed by the solicitor under section 4627 of the Criminal Code of 1896. In the circuit court a demurrer was interposed to the complaint, which the court overruled. The complaint charges as follows: "The state of Alabama, by its solicitor, complains of Hadley Y. Brooke that within 12 months before the commencement of this prosecution he, the said Hadley Y. Brooke, being the publisher of a newspaper in said county, did unlawfully and maliciously publish of and concerning Clifford K. Sharp, the superintendent of education of said county, the following libelous matter, to wit." Then follows the libelous matter published, and the complaint then concludes as follows: "Said libelous matter having been published by said Hadley Y. Brooke in Crenshaw county, Alabama, on, to wit, January 24, 1907, which said libelous matter had a tendency to provoke a breach of the peace, against the peace and dignity of the state of Alabama." It is obvious from a reading of the complaint that many of the grounds of the demurrer are answered by the complaint, and no further consideration of these grounds is required than this statement. It was not essential that the entire article in which the alleged libelous matter occurred should be set out in the complaint. It was sufficient to set forth only that which was libelous.

The question is raised by several of the grounds of the demurrer of a failure to charge the falsity of the alleged libelous matter. This is the material and important question in the case. The statute (section 5063 of the Criminal Code of 1896) under which the defendant is prosecuted reads as follows "Any person, who publishes a libel of another which may tend to provoke a breach of the peace, must be punished on...