Browning v. Commonwealth

• Decision Date: 25 September 1903
• Citation: 76 S.W. 19,116 Ky. 282
• Parties: BROWNING v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

76 S.W. 19

116 Ky. 282

BROWNING v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 25, 1903

Appeal from Circuit Court, Webster County.

"To be officially reported."

David Browning was convicted of a criminal libel, and he appeals. Affirmed.

Lockett & Lockett, for appellant.

C.J Pratt and M. R. Todd, for the Commonwealth.

BURNAM C.J.

The appellant, David Browning, prosecutes this appeal from a judgment for $85 rendered against him in the trial of an indictment for criminal libel, which was based upon the following words in a letter written by the appellant to one L. C. Newman concerning George Beard, viz.: "You never answered my letter and I have since learned that you have gone to work for Beard. Don't let the type and outfit of the Banner get scattered until the 28th, when we can do something with it. Did Thompson pay you $75.00. Beard will purloin all of the outfit if he has a chance at it, so I will look to you to protect it for the present."

The first and most important question presented by the record for decision is whether in law the communication upon which the indictment was based should be deemed libelous. It is insisted for appellant that the words, "Beard will purloin all of the outfit if he has a chance at it," are not a libel, because they do not charge that he has actually purloined, but are the mere expression of an opinion on the part of the writer as to what Beard would do if an opportunity presented itself; that it is indispensable that the words, whether spoken or written, should charge "an act done or a condition existing"; that, if they merely charge that the party referred to will do a dishonorable or criminal act, that is not a defamation for which action will lie. It seems well settled in the law of slander that words which only imply a purpose or intention on the part of the person spoken of to commit a crime, or describe him as possessing a disposition, or as wanting in qualities, which would permit him to commit a crime, or amount to a charge that, if opportunity offers, he would commit it, are not per se actionable. See Newell on Defamation, Slander and Libel, § 101; 1 Starkie on Slander, 24; Townshend on Slander and Libel, 162; Bays v. Hunt, 60 Iowa 251, 14 N.W. 785; Fanning v. Chace, 17 R.I. 388, 22 A. 275, 13 L.R.A 134, 33 Am.St.Rep. 878. But the law makes a clear and well-defined difference between spoken and written words. It does not require the imputation of a crime to render a publication libelous. Any defamatory words calculated to degrade or injure the reputation of a person in society, when written and published maliciously, are libelous. Riley v Lee, 88 Ky. 603, 11 S.W. 713, 21 Am.St.Rep. 358; Allen v. Wortham, 89 Ky. 486, 13 S.W. 73. And the law is equally well settled that, where a defamatory libel on the character of an individual will support an action for damages, the publication amounts to an indictable offense inasmuch as it tends to provoke violence and disturb the peace of society. 1 Starkie, 211. In Duncan, etc., v. Brown, 54 Ky. 186, it was held prima facie libelous to write and publish of one "that he would put...