Cole v. Commonwealth

• Citation: 222 Ky. 350
• Parties: Cole v. Commonwealth. Warley v. Same. Louisville News v. Same.
• Decision Date: 16 December 1927
• Court: United States State Supreme Court — District of Kentucky

222 Ky. 350

Cole v. Commonwealth.

Warley v. Same.

Louisville News v. Same.

Court of Appeals of Kentucky.

Decided December 16, 1927.

1. Libel and Slander. — Libel is any false and malicious publication which tends to blacken the memory of one who is dead or to degrade or injure one who is alive, or bring him in contempt, hatred,

or ridicule, or which accuses him of any crime punishable by law, or of any act odious or disgraceful to society.

2. Libel and Slander. — Language concerning one in office, which imputes to him want of integrity or misfeasance in his office or want of capacity generally to fulfill duties, or which is calculated to diminish public confidence in him as an officer or charge him with breach of some public trust, is actionable.

3. Libel and Slander. — Comment on, and criticism of, acts and conduct of public men, are privileged if fair and reasonable and made in good faith, yet the right to criticize does not embrace right to make false statements of fact or draw inferences or express opinions not based on truth.

4. Libel and Slander. — A false charge to effect that a judge abandons his office and takes up role of prosecutor is libelous, in that it necessarily charges that he is guilty of misconduct, since office of judge and office of prosecutor are wholly incompatible.

5. Libel and Slander. — False allegation that persons accused of crime were to be swiftly convicted and hanged, no matter what the circumstances were, amounts to a charge of gross misconduct on part of judge, and is therefore libelous.

6. Libel and Slander. — False charge that a judge was conducting a farcical trial, and that trial was mob law, and that judge had not given a thought to presumption of innocence that law throws about accused, held libelous as charging want of integrity.

7. Libel and Slander. — Where words used in newspaper articles relative to misconduct of judge in conducting trial referred to judge, and were so understood by others, it is not necessary that he be mentioned in article by name.

8. Libel and Slander. — Newspaper publications, charging that judge was busying himself with certain prosecution and that accused were to be swiftly convicted and hanged, and charging other misconduct, held not privileged under Bill of Rights, sec. 1, subsec. 6.

Appeals from Hopkins Circuit Court.

ALLEN P. DODD for appellants.

FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE CLAY.

Affirming.

These appeals, which are prosecuted from judgments convicting appellants of libel, and fixing their punishment at a fine of $250 each, will be considered in one opinion.

The insufficiency of the indictments is the only ground urged for a reversal.

Omitting the caption, the Cole indictment is as follows:

"The grand jurors of the county of Hopkins, in the name and by the authority of the commonwealth of Kentucky, accuse I. Willis Cole of the offense of libel committed in manner and form as follows, to wit: The said I. Willis Cole, in the said county of Hopkins, on the 17th day of April, 1926, and before the finding of this indictment, and within one year next before the finding of this indictment, in the county aforesaid, did unlawfully, willfully, maliciously, and falsely print and publish and cause to be published in the Louisville Leader, a newspaper published in Louisville, Ky., and having a general circulation in the county of Hopkins, of and concerning the Honorable Ruby Laffoon, who was then and at the time the duly and legally elected, qualified, and acting judge of the Hopkins circuit court, and a resident of Madisonville, Hopkins county, Ky., a certain article or publication containing false and malicious words and sentences, of and concerning the said Ruby Laffoon, judge as aforesaid, as follows, to wit:

"`The judge, who under the law simply acts as referee in a case, has in this instance busied himself with the prosecution and citizens, a special court has been called, a bigger army than that used at Lexington at a greater expense is to be on duty, and it is the consensus of opinion that Hollis, Fleming, and Bard, and also Blanton, are to be so swiftly convicted and hanged as to make the Lexington affair look like a penny with a hole in it. It makes no difference whether they all confess or not or what the circumstances are.'

"A copy of the entire article is filed herewith as part hereof, marked `Exhibit A,' for identification.

"That in the said false and malicious words and sentences so written, composed, and published as aforesaid, the said I. Willis Cole unlawfully, willfully, maliciously, and falsely imputed dishonesty, misconduct in office, corruption in the discharge of his duties, and unfitness for the performance of the same to the said Ruby Laffoon, judge of the Fourth judicial district of Kentucky, in that the said Ruby Laffoon had assisted the commonwealth attorneys and other citizens in securing evidence to convict Columbus Hollis, Bunyan Fleming, and Nathan Bard, three negroes, who in his court were charged with rape, and had called soldiers to be then and there present to aid and assist the said Ruby Laffoon as such judge, in the conviction and execution of the aforesaid negroes, and thereby enable the said judge to secure an unlawfully swift conviction and subsequent hanging of the aforesaid three negroes, without any regard, legal or otherwise, to the said Hollis, Fleming, and Bard's rights as citizens of Hopkins county and the state of Kentucky, in his court in Hopkins county, and that he, the said judge, would willfully and maliciously as judge, while trying the said negroes, knowingly and prejudicially refuse to give either of them a fair and impartial trial on the charge against them, but that he, the said judge, would unlawfully assist, aid, and encourage the prosecution in bringing about the unlawful conviction of the aforesaid three negroes upon the charge as made against them; that in said article the said I. Willis Cole falsely charged the aforesaid judge with dishonesty and lack of integrity as a judge, with unlawful and malicious conduct before and during the trial in his court, of the aforesaid three negroes all of which was done for the malicious purpose and intent to injure his good name and fame as a public officer and as a citizen of the commonwealth, and to expose him to public suspicion, hatred, contempt and loss of reputation, against the peace and dignity of the commonwealth of Kentucky."

Exhibit A filed with the indictment, is as follows.

"The Louisville Leader.

"Madisonville Sets Stage for Speedy Trial and Hanging of Negroes.

"Justice will Not Slip as in the Merchant Case.

"Madisonville, Ky., April 15. Outdone by Mississippi, Georgia, and other states south, when it comes to making negroes charged with certain offenses pay the extreme penalty, outside of the courts, Kentucky bids to outdistance them all in the double standard of laws, the mockery of it, when the negro is involved, through speedy trials which fall little short of `legalized lynching,' at a very high cost, and Madisonville is about to outdo Lexington in the effort to put the old state over.

"About 70 days ago in Lexington, Ky., Ed Harris, who became enraged with his partner in the bootlegging business, killed him and his two children, and later, charged with wounding and assaulting the wife, was found guilty within fifteen minutes, paying the penalty by hanging within thirty days after he was convicted by the Fayette county white jury. Thirty days after he was hanged, Chas. Merchant, a white man, raped an 11 year old colored school girl and then marched her through the streets without a piece on her body. His guilt was not questioned, but within the same fifteen minutes a white jury in the same city and county and before the same judge declared him insane.

"In Madisonville three negroes, Columbus Hollis, Bunyan Fleming, and Nathan Bard, have been arrested and charged with assaulting a young white woman on Wednesday night, April 7. A fourth negro, Joe Blanton, whose photograph was found in a white woman's pocket book, turning public light on an association between the races that has been going on for some time, is also being held in an effort to connect him in some way with the assault that his neck may also be speedily broken. Blanton and Hollis are held in the Eddyville penitentiary, having been moved from jails of this section for safe-keeping. Fleming and Bard were first moved to Louisville but later taken to the penitentiary at Frankfort for safekeeping, it is said. The opinion is, however, that they were safe in Louisville, but were moved for fear of receiving some of the legal help due them even if guilty. It is reported that the men when seen on the train which carried them into Louisville early last Monday were beaten and bloody over their heads and faces. Hollis is said to have confessed to the crime and implicated Fleming and Bard, who strenuously deny guilt. The judge, who under the law simply acts as referee in a case, has in this instance busied himself with the prosecution and citizens, a special court has been called, a bigger army than that used at Lexington at a greater expense is to be on duty, and it is the consensus of opinion that Hollis, Fleming, and Bard, and also Blanton, are to be so swiftly convicted and hanged as to make the Lexington affair look like a penny with a hole in it. It makes no difference whether they all confess or not or what the circumstances are.

"The strange thing about Harris' case was that he killed three persons and then turned and committed assault. Taking for granted he was guilty of such a thing, and something was wrong with his mind, he had no chance to prove it. It is known here that there has been frequent association of at least three of these negroes with white women, and yet they needed to assault others. If they are guilty, they cannot possibly...