Dunbar v. Territory of Arizona

• Decision Date: 20 July 1897
• Docket Number: Criminal 114
• Citation: 5 Ariz. 184,50 P. 30
• Parties: JOHN O. DUNBAR, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

50 P. 30

5 Ariz. 184

JOHN O. DUNBAR, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 114

Supreme Court of Arizona

July 20, 1897

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. Joseph D. Bethune Judge.

Reversed.

W. M Lovell, and Barnes & Martin, for Appellant.

Thomas D. Satterwhite, Attorney-General, for Respondent.

Rouse J. Hawkins, J., concurs. Baker, C. J., dissenting.

OPINION

The facts are stated in the opinion.

ROUSE, J.--Appellant was indicted in Pima County for libel, tried, and convicted. It was alleged in the indictment that John O. Dunbar, on the twelfth day of October, 1893, at the county of Maricopa, territory of Arizona, was the editor of a certain newspaper, known as the Weekly Gazette, a newspaper of general circulation in said county of Pima, and also throughout the United States of America; that on said twelfth day of October, 1893, said Dunbar published, and caused to be published, in said paper of and concerning Francis J. Heney, William K. Meade, Charles M. Bruce, and Louis C. Hughes the following: "Heney, Meade, Bruce, Hughes et al. paid $ 200 for Washington dispatches to defeat Sam Webb, and made all kinds of ridiculous charges against him. Yet the senate, in executive session, consisting of fifty-five members, voted unanimously for Mr. Webb's confirmation. This shows the strength of the gang of hoodoos with decent people. Vale patronage-peddlers, land-grant sharks, assassins, and looters." Defendant demurred to the indictment, and for grounds of demurrer urged that it did not appear from the indictment that the paper in which said alleged libelous matter was printed had been circulated in Pima County, or read by any one in said county, and for that reason contended that the district court of said county had no jurisdiction of the case; that there were several offenses charged, or attempted to be charged, in the indictment,--viz., a libel of Heney, a libel of Meade, a libel of Bruce, and a libel of Hughes; that there were not allegations sufficient to show that the Heney mentioned in the article was Francis J. Heney, that the Meade was William K. Meade, that the Bruce was Charles M. Bruce, and that the Hughes was Louis C. Hughes. The demurrer was overruled, and defendant duly excepted. The defendant then entered a plea of not guilty, the cause was tried, and a verdict of guilty was returned, on which the court rendered the following judgment: "It is therefore ordered, adjudged, and decreed that the said John O. Dunbar be fined in the sum of one thousand dollars, and that he be delivered or remanded to the custody of the sheriff of the county of Pima, territory of Arizona, until said fine is paid." The defendant was then remanded to the custody of the sheriff of the said Pima County.

Paragraph 405 of the Penal Code is as follows: "Every person who willfully and with a malicious intent to injure another publishes or procures to be published any libel, is punishable by fine not exceeding five thousand dollars or imprisonment in the territorial prison not exceeding one year." The only punishment that can be imposed on one convicted of the crime of libel is either imprisonment in the territorial prison (penitentiary) or a fine. Both punishments cannot be imposed, and the imprisonment cannot be at any place other than the territorial prison. The judgment could have been that defendant be imprisoned, and, if that had been the judgment, the defendant would have been imprisoned in the territorial prison (par. 405, supra); or the judgment could have been that he pay a fine (id.). If the judgment had been that defendant pay a fine, the fine could be collected only by an execution issued upon such judgment, as on a judgment in a civil case. Pen. Code, par. 1833. No imprisonment could be imposed on such a judgment. To warrant imprisonment on a judgment imposing a fine in a case providing for only a fine or imprisonment, not both, it...