Commonwealth v. Enwright

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: SANDERSON
• Citation: Commonwealth v. Enwright, 259 Mass. 152, 156 N.E. 65 (Mass. 1927)
• Decision Date: 06 April 1927
• Parties: COMMONWEALTH v. ENWRIGHT.

259 Mass. 152

156 N.E. 65

COMMONWEALTH

v.ENWRIGHT.

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1927.

Exceptions from Superior Criminal Court, Suffolk County; E. B. Bishop, Judge.

Frederick D. Enwright was convicted of publication of libels in a newspaper, and he excepts. Exceptions overruled.D. J. Lyne, Asst. Dist. Atty., of Boston, for the Commonwealth.

M. L. Sullivan, of Salem, for defendant.

SANDERSON, J.

The defendant was convicted on both counts of an indictment, charging the publication of libels upon one James M. Curley, in a newspaper called the Boston Telegraph. Besides the printed matter, a picture, of a prisoner dressed in a striped suit with a ball and chain attached to one of his feet and outside the cell door an armed attendant, was shown. Each of the articles contained the words ‘Curley the Thug’ printed in large type directly over the picture of the prisoner. Under the picture was a statement that James M. Curley, former mayor, ‘learned to hit from the rear while serving a term in jail for a serious criminal offense.’

[1][2] The defendant testified that the words above the picture were put in at his direction; that he wrote what appeared under it; and that this printed matter referred to James M. Curley. He also testified that he gave directions for the drawing of a picture of a man in jail with a ball and chain and stripes; but that the cartoon was symbolic and not intended to be a picture of James M. Curley. As a part of the commonwealth's case, a witness who had known Curley for thirty years was shown the picture and testified, subject to the defendant's exception, that he understood ‘Ex-Mayor Curley’ was designated by it; that the differences between the facial characteristics of the cartoon and those of Curley were considerable, referring particularly to certain designated features. After testifying in cross-examination that each of the features and characteristics of the face and head in the cartoon differed from those of Curley, the witness testified in redirect examination, subject to the defendant's exception, that taking the picture as a whole there was a suggestion of James M. Curley's appearance. Before this testimony was offered, Curley stood up in the courtroom at the request of the district attorney. The burden was on the commonwealth to prove that the libel was published of and concerning James M. Curley. Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N. E. 462,20 L. R. A. 856.

In deciding whether the cartoon was intended to depict Curley, the jury could consider the parts of the publication above and below the picture, as well as it resemblance or lack of resemblance to the individual, from such observation of him as they could get in the courtroom, but they also were entitled to hear the evidence offered in the case. It might be that a person well acquainted with Curley, who had seen him with such changes of expression as come over a face in varying moods and under diverse circumstances, could see in the cartoon things to suggest the appearance of this man which would not appear to the jury upon a superficial comparison. ‘Every person is competent to express an opinion on a question of identity as applied to persons.’ Commonwealth v. Sturtivant, 117 Mass. 122, 133 (19 Am. Rep. 401). This kind of evidence is received ‘because of the impossibility of reproducing the numerous particular facts upon which they are founded.’ Jenkins v. Weston, 200 Mass. 488, 493, 86 N. E. 955, 958. It is evident from the whole testimony of the witness that his observations and impressions could not be fully and accurately reproduced by descriptive details. ‘The extent to which particulars may be summed up in a general expression is a matter involving more or less discretion, and cannot be disposed of by the suggestion that the general expression involves the conclusion which the jury is to draw.’ Mulhall v. Fallon, 176 Mass. 266, 267, 57 N. E. 386,54 L. R. A. 934, 79 Am. St. Rep. 309.

In Goodrich v. Davis, 11 Metc. 473, the court, in referring to testimony of witnesses called by the plaintiff to the effect that they understood the libelous publication to apply to the plaintiff, said, at page 484:

‘Evidence of this character has been often received. Indeed, in some cases, as those of libels by signs or pictures, it would seem to be absolutely necessary to resort to this species of evidence, to show to the jury the applicaion of the libel to the plaintiff.’

Evidence of a similar nature was held to be properly admitted in Miller v. Butler, 6 Cush. 71 (52 Am. Dec. 768). And in Leonard v. Allen, 11 Cush. 241, it was held that, when an alleged slander is made in part by signs and gestures, it is competent to permit witnesses to state what they understood the defendant to mean, and to whom he intended the signs and gestures to apply. This conclusion is not inconsistent with the rule stated in Snell v. Snow, 13 Metc. 278 (46 Am. Dec. 730) that in an action for slander, if the language is capable of being stated fully to a jury and of being fully understood by them, there is no occasion for opinion evidence; or with the ruling made in Commonwealth v. Tucker, 189 Mass. 457, 486, 76 N. E. 127, 138 (7 L. R. A. [N. S.] 1056), concerning which the court said it did not appear that the witness could see any better than the jury ‘which pin was shown in the photograph.’

The fact that Curley was in the courtroom did not as matter of law deprive the commonwealth of its right to introduce evidence which would have been competent in his absence. By reason of his presence the jury were enabled, to some extent al least, to test the accuracy of the evidence by their own observation. We cannot say that there was error in the admission of the evidence to which objection was made.

[3] The defendant saved an exception to the refusal of the judge to rule that the ‘unexplained failure of James M. Curley to testify and to deny the truth of the statements contained in each of the articles set forth in the indictment may be regarded by the jury ‘as tending to show a concession of the truth of the facts stated’ in each of the aforesaid articles.' He also saved an exception to the part of the charge set forth in the bill of exceptions referring to the failure of Curley to testify. The judge said:

‘And so the trial of this case is in the hands of the district attorney; he can call any person he desires, he can summon any person whom he thinks has knowledge of the facts, and in his discretion and on his honor he puts on the witnesses whom he thinks will help you. If he chose to put on James M. Curley, well and good; if he did not put him on, well and good. James M. Curley, I understand from the statements of counsel, has been in this courtroom the greater part of the time that we have taken. He was available to the commonwealth or to the defense as a witness.’

The judge also made it clear to the jury that this was an indictment found by the grand jury and that the issue was between the commonwealth and the defendant; that prosecutions are carried through to preserve the liberties and rights of the people of this commonwealth; and that the individual alleged to have been libeled could not control the question whether an...