Houston Press Co. v. Smith

• Decision Date: 10 February 1928
• Docket Number: (No. 9014.)
• Citation: 3 S.W.2d 900
• Parties: HOUSTON PRESS CO. v. SMITH.
• Court: Texas Court of Appeals

3 S.W.2d 900

HOUSTON PRESS CO. v. SMITH.

(No. 9014.)

Court of Civil Appeals of Texas. Galveston.

February 10, 1928.

Rehearing Denied March 8, 1928.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by J. Dixie Smith against the Houston Press Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Fulbright, Crooker & Freeman and W. B. Bates, all of Houston (John H. Crooker, of Houston, of counsel), for appellant.

John M. Mathis, A. E. Heidingsfelder, W. M. Johnson, and Samuel Schwartz, all of Houston, for appellee.

LANE, J.

This is a suit for libel brought by J. Dixie Smith against the Houston Press Company, with a prayer for damages in the sum of $50,000, which the plaintiff alleges he has suffered as a result of the publication of certain defamatory articles, the first of which was published November 6, 1923, and the last in the fall of 1924.

The plaintiff was duly elected district attorney of Harris county, Tex. He was elected in 1922 on what was known as the Ku Klux Klan ticket. He was at the time of his election a member of the order of the Ku Klux Klan, and was a candidate for the same office as the Klan candidate at the primary election to be held in July, 1924, at which election he was defeated.

The Houston Press is a daily newspaper published and circulated by the Houston Press Company in Houston and vicinity. The alleged and proven publications of which the plaintiff complains were published in successive editions of the paper and the parts thereof particularly complained of, together with the matters leading up to their publication, may be explained as follows:

The articles complained of related to the handling of criminal cases pending before the court and the grand jury, and to the plaintiff, Smith, as district attorney, and to his candidacy for re-election during a heated campaign in which Smith was admittedly the Ku Klux Klan candidate.

The appearance of the first article complained of may be explained as follows:

While Smith was acting as district attorney, the grand jury made its report to Judge Robinson, judge of the criminal district court of Harris county, in which it was substantially stated that the officers charged with the enforcement of the criminal laws were derelict in the performance of their duties, and that such officers were not affording the grand jury such assistance as they should do. Smith says that he considered the report as a reflection on him. He testified that, about two months prior to the making of the grand jury report, he did, before an audience of 3,000 citizens of Houston, criticize the grand jury, which criticism was published by the papers. After the report of the grand jury was presented to the court, to wit, on the 5th day of November, 1923, Smith made a written statement which he caused to be published in the Houston Press, in which he said:

"Inasmuch as the retiring grand jury of Harris county has seen fit to severely criticize me for what they claim to be a failure to render assistance and co-operate with them in their task of ferreting out violations of law, I feel constrained, in view of the personnel of said grand jury and their well-known attitude on several subjects, and in regard to some of the laws on our statute books, and especially the prohibition law, to completely ignore their report, but in justice to the opinions of others, I deem it necessary to make a brief statement in reply to their caustic remarks concerning me personally.

"In the first place after 11 liquor cases had been submitted to the grand jury, and in each case a `no-bill' was voted by them, and an attempt to refer same to the federal grand jury, in violation of their oaths as grand jurors, I went voluntarily before them in a spirit of helpfulness and offered to assist them in their work and to furnish additional information for their consideration, and was told that my offer was not appreciated, and not until after the public had been aroused to the point of indignation, and not until after the judge of the criminal district court of this county called them into the courtroom and again charged them that their failure to indict violators of the law, regardless of their personal views and opinions, was lending aid to anarchy, did they vote a true bill in any liquor case.

"Out of the liquor cases submitted to this grand jury, cases bound over to them from the various justice courts of this county, this grand jury failed and refused to indict in 51 cases submitted to them. In each of these cases, in my opinion, the evidence was sufficient to warrant an indictment and sustain a conviction. In no instance have they made any voluntary investigation of any liquor law violation in this county, so far as this office has been informed. On the contrary, investigators from this office have been denied admittance to the grand jury room when they desired to report violations of the liquor law, and a sheriff from an adjoining county with two witnesses failed to gain admittance to report violations of the liquor laws in Harris county about which they had valuable information. `No-bills' were voted in some of the most flagrant violations of the law. One in particular was in the case of a man charged with selling whisky to several young boys. * * *

"The grand jury has completely failed in its report to point out a single specific instance of failure of the district attorney's office to assist them to run down violators of the law; on the contrary, I offered to do so and was virtually insulted by a member of the grand jury in the presence of the grand jury.

"If the public knew the number and character of cases `no-billed' by this grand jury — and they may know if the newspapers will publish the justice court records — the people of this county will readily understand the variance of opinions of the grand jury and your district attorney.

"The grand jury has refused to indict a number of persons for driving automobiles on the public highways while in an intoxicated condition, notwithstanding several people have been injured by drunken men violating this law. These records are in my office and will be gladly shown to any one desiring to see them.

"Finally, I may add that it is passing strange that for the past two years the jury commissioners and grand jurors of Harris county have been selected from a particular class of persons, to the exclusion of the great mass of the people who have not had representation on that body.

"How long are the decent law-abiding people of Harris county going to tolerate such conditions without registering their vigorous protest?

                    "Respectfully submitted
                                         "J. Dixie Smith
                "Criminal District Attorney, Harris County."
                

The first article published of which the plaintiff complains was published on November 6, 1923, and is a reply of five members of the grand jury who had been criticized by the plaintiff, the material parts of which are as follows:

"We have said in our final report to the court all that we care to say with regard to Mr. Smith's scandalous treatment of the grand jury. We could, of course, were we disposed to follow his example, and disregard our obligations to keep secret the proceedings of the grand jury room, say much that would prove of interest to the public, but we will not do that.

"Since, however, in his feeble effort to reply to our criticisms of him, he has uttered statements which are so unconscionably unfounded in truth, we are constrained to refute them.

"He states: That `investigators from his office have been denied admittance to the grand jury when they desired to report violations of the liquor laws.' This accusation is miserably false. At no time were his investigators denied admission to the grand jury room. He says again, `A sheriff from an adjoining county, with two witnesses, was denied admittance to report violations of liquor laws in Harris county, about which they had valuable information.' This accusation is wholly without foundation. No sheriff or other witness was ever denied that privilege. That, so far as he is informed, we returned no indictments against persons arrested for driving automobiles on the public highway while intoxicated. This statement furnishes another instance of his utter incapacity for accuracy. We did return several indictments for such offenses. In truth, in one or two instances only did we fail to indict and for the very persuasive reason that we were convinced the persons complained of were not guilty.

"During the closing hours of our term we summoned one of the investigators from the district attorney's office. In answer to our inquiry he informed us that his chief had not instructed him to investigate violations which he (Dixie Smith) frequently and in the public press, declared to be prevalent in the city of Houston. In this connection it is proper to say that, informed as he is of such violations, his failure promptly to institute criminal proceedings against the offending persons constitutes a flagrant dereliction of duty for which, in our opinion, he may be impeached.

"`Dean Law.'

"He is also chargeable with a sinful and deliberate attempt to deceive the public into believing that we returned few, if any, indictments for violation of the `Dean Law.'

"The records accessible to the public, we feel quite sure, will disclose that we returned a greater number of indictments for these offenses than did any preceding grand jury, including our immediate predecessors, whom he generously commended and who, we are certain, deserved unstinted praise for their able, conscientious, courageous, and successful exposure of a reign of lawlessness, prevalent in Harris county during the incumbency of the present district attorney, and consistently ignored by him.

"Notwithstanding the mouthings of this inefficient and irresponsible political accident, we performed our exacting duties with courage, impartiality, and...