Globe Newspaper Co. v. Commonwealth

Decision Date21 June 1905
Citation74 N.E. 682,188 Mass. 449
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Chas T. Gallagher and Howard Whitmore, for plaintiff.

Frederick H. Nash, for the Commonwealth.



This is a writ of error to the superior court, to correct alleged errors in the proceedings whereby the plaintiff in error was found guilty of a contempt of court in publishing in its newspaper two articles relative to a prosecution for murder upon an indictment then pending against one Charles L Tucker. The first question is whether a writ of error lies in such a case. This question was considered and decided affirmatively in the very recent case of Hurley v Commonwealth, 74 N.E. 677.

The first assignment of error is that the publication did not constitute contempt, in that 'said articles were published, not during the progress of the Tucker trial, nor immediately before said trial, but at a time when the assignment of the date for said trial had been revoked, and the said trial had been indefinitely postponed.' The defendant's plea in this part of the case is, 'In nullo est erratum.' This raises the question of law whether the publication of an article which otherwise would constitute contempt of court, as tending to obstruct the administration of justice can be justified on the ground that the trial to which it relates is not then in progress, nor immediately to be begun, but is to occur at a time to be afterwards fixed. When the articles and the circumstances of publication are such as appear in the present case, we are of opinion that it cannot be so justified. The disturbing and obstructing effect of such an article might be greater if the publication was immediately before the trial than if it occurred months before, and this should be taken into account in imposing the sentence. In some cases the difference in the degree of detriment that would be expected to result might be sufficient to constitute a contempt if the publication were just before the trial, when the same publication, a long time before the trial, would affect the case so little as not to deserve punishment. But it is enough to subject the offending publisher to punishment if the publication is very objectionable, and the case to which it relates is pending at the time of publication. Onslow's and Whalley's Case, L. R. 9 Q. B. 219; Hunt v. Clarke, 58 L. J. Q. B. 240. See, also, In re Chettenham, etc., Wagon Company, L. R. 8 Eq. 580; In re Sturoc, 48 N.H. 428, 97 Am. Dec. 626; Respublica v. Oswald, 1 Dall. 319, 1 L.Ed. 155, 1 Am. Dec. 246. In Rex v. Parke (1903) 2 K. B. 432, the publication in a newspaper was made before one accused of murder was even indicted. It was contended that as no cause was pending in the high court, and it was not certain that there would be an indictment, the high court had no jurisdiction to fine the publisher for contempt. Proceedings having been instituted before a magistrate, it was held, after the fullest consideration, that the court had jurisdiction, and punishment was inflicted. Willis, J., said in the opinion: 'Great stress has been laid upon an expression which has been used in judgments upon questions of this kind--that the remedy exists when there is a cause pending in the court. We think undue importance has been attached to it. * * * It is possible very effectually to poison the fountain of justice before it begins to flow. It is not possible to do so when the stream has ceased.' In the present case the indictment was found several months before the publication, and the time for trial had been appointed and postponed. The plaintiff in error had full knowledge that the publication might affect the proceedings in the pending case. The facts stated in this assignment show no error.

The second assignment of error was on the ground 'that said articles were true and impartial statements of news and facts, and were not intended to injure either the prosecution or the defense in said trial, and were not intended to reflect upon the dignity of the court, or to hinder or interfere with the due administration of justice.' The defendant in error moved to strike out this assignment on the ground that the matters alleged in it were immaterial. At the hearing before a single justice the parties agreed that an order might be entered granting this motion, with a stipulation that if, as matter of law, the motion should have been denied, the plaintiff in error should take such benefit from the assignment as the full court might deem it entitled to under the agreed statement of facts. It was accordingly so ordered.

As a preliminary to the discussion of the question thus raised, it may be well to refer to the publication. Two articles were published--the first in the Sunday Globe of September 18 1904, and the second in the Daily Globe on Monday, September 19, 1904. The first was a very long and elaborate article, which, after striking headines, began with a fac simile of a specimen of Charles L. Tucker's handwriting taken from a letter, with his signature, followed immediately by a fac simile of a paper found by the side of the body of Mabel Page, who was murdered. Then came headlines, the first of which was: 'Battle of the Experts Bids Fair to be One of the Most Notable in the History of Murder Cases.' The first part of the general discussion of the subject is entitled, 'Analysis of the disputed 'Morton' Address,' and it goes at great length into the particulars of likeness and unlikeness in the handwriting, as they might appear to experts, referring to letters and parts of letters, as well as to the words, including interviews with four different experts in handwriting, who were said to have been employed by the commonwealth, and a very elaborate discussion of the supposed...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT