Krasner v. State

• Decision Date: 16 May 1946
• Docket Number: 6 Div. 440.
• Parties: KRASNER v. STATE.
• Court: Alabama Supreme Court

26 So.2d 526

248 Ala. 12

KRASNER v. STATE.

6 Div. 440.

Supreme Court of Alabama

May 16, 1946

J T. Johnson, of Oneonta, for petitioner.

Wm. N. McQueen, Atty. Gen., and John O. Harris Asst. Atty. Gen., opposed.

GARDNER Chief Justice.

Petitioner's conviction for the offense of libel was affirmed by the Court of Appeals, and certiorari was awarded for a review of the opinion resulting in such affirmance. We entertain no difference of view concerning the ruling on the demurrer to the indictment and the discussion relating thereto. And without stopping to consider other questions, we feel justified in confining consideration here to the matters which we view as of importance.

The opinion sets out Sec. 12 of our State Constitution, which is applicable only to criminal as distinguished from civil actions of libel. Alabama Ride Co. v. Vance, 235 Ala. 263, 178 So. 438. The publication in the instant case related to the conduct of a public officer, the mayor of Warrior. In such case the provision is to the effect that the truth of the published matter may be given in evidence. The history of statutory and constitutional provisions of this character in a number of jurisdictions is outlined in Ferdon v. Dickens, 161 Ala. 181, 49 So. 888, and Warren v. State, 197 Ala 313, 72 So. 624, with particular reference to the further provisions of Sec. 12 that the jury shall have the right to determine the law and the facts under direction of the court.

And even as to civil actions arising from publications concerning public officers there is statutory provision that the truth may be given in evidence. Sec. 908, Title 7, Code 1940. And in the succeeding section (Sec. 909) is the provision that in all actions of slander or libel the truth spoken or written, or the circumstances under which they were so spoken or written, may be given in evidence under the general issue in mitigation of damages.

These statutory provisions were fully discussed in Ferdon v. Dickens, supra.

In Starks v. Comer, 190 Ala. 245, 67 So. 440, the Court held, among other things, that publication concerning a candidate for public office was not qualifiedly privileged; and like holding as to a public officer was had in Parsons v. Age-Herald Pub. Co., 181 Ala. 439, 61 So. 345. In this latter authority, concerning publication as to a public official, the further holding was that the publisher can justify by proving that it was true. Of course, there may be fair and reasonable comment upon the conduct of a public official, and whether or not it is fair and reasonable is for the jury's consideration. Parsons v. Age-Herald, supra.

The above-noted statutory provision as to civil actions for libel growing out of publications relating to the conduct of public officials, and the historical reference to this subject found in our decisions, serve to illustrate the importance of this branch of the law as well as to throw light upon the meaning of what is now Sec. 12 of our Constitution. Such provision has been in our Constitution since 1819, with the added stipulation that in all indictments for libel, the jury shall have the right to determine the law and the facts under the direction of the court.

In Vol. II, 12th Ed., Wharton's Criminal Law, p. 2312, speaking of such latter provision, the author states that the jury have always had the right to give their verdict on the whole issue and to decide the question as one of fact, whether the matter charged be libelous or not, as well as the questions of fact as to the publication and the truth of the innuendoes. In the note to the text the case of State v. Goold, 62 Me. 509, is cited to the effect that the judge is not bound to state to the jury as a matter of law whether the publication in question is or is not a libel, and that the proper course for him to pursue is to define to the jury what a libel is and then leave it to them to determine whether the publication in question does or does not come within that definition. And as to criticism of public officials concerning their public acts, even in civil actions, as pointed out in the Parsons case, supra, it is for the jury to say whether the comment in question was fair and reasonable or otherwise.

These observations are pertinent here in view of ground of the motion to quash and demurrer No. 5, as set out in the opinion of the Court of Appeals, indicating that the defendant was insisting that the mayor had received funds in violation of the law. And these observations would likewise be still more pertinent if we are permitted to look to the entire contents of the 'dodger,' which was received in evidence in its entirety without objection, as stated in the opinion. When the body of this dodger is read in connection with the headline noted in the indictment where the word 'pocketed' is used, it appears that the defendant had reference to the alleged unlawful reception of funds by the mayor, as outlined in ground 5 of the motion to quash the indictment. Whether or not, therefore, the language used, construed as a whole, was libelous and whether or not the criticism was fair and reasonable or otherwise, were questions for the jury's determination.

It appears from the opinion of the Court of Appeals the defendant attempted to elicit from Mayor Bowers on cross-examination an admission that he got the $1083 and whether or not he had paid it back. Defendant also sought on his cross-examination of Mayor Bowers to have him testify as to whether or not he had been notified several times that the law prohibited mayors, in towns where there were no recorders, from receiving fees or collecting costs, and whether, if he received fees while acting as such recorder, he is to pay them into the city treasury.

We think it clear enough that by these inquiries to the mayor the defendant was endeavoring to elicit testimony tending, at least in some degree, to establish the truth of his publication. The opinion of the Court of Appeals appears to treat such matters as wholly immaterial. With this we are not in accord.

Mr. Wharton, in his book on criminal law, Vol. II, supra, notes that at common law the general rule was that the truth was inadmissible as a defense in a criminal prosecution for libel, though the doctrine was doubted by Kent, J., and Thompson, J., in a celebrated case in which the New York court was equally divided, and which led to the incorporation of a provision in the Constitution of that State akin to our own. The author then adds:

'It is enough to say that the general rule in England, as well as in the United States, now is that 'the publication of a libel is not a misdemeanor if the defamatory matter is true, and if the publisher can show that it was for the public benefit that such matter should be published.''

See also Restatement of the Law of Torts, Secs. 582 and 606. Certainly, with our constitutional provision so emphatic, the truth of the publication under these circumstances may be considered by the jury in justification of the charge.

And in Brooke v. State, 154 Ala. 53, 45 So. 622, it is shown that this defense of truthfulness in cases of this character was admissible under the plea of not guilty.

It is pointed out, also, in Wharton's Criminal Law, supra, p. 2306, that there may be cases where the defendant, having acted in discharge of a supposed duty and with honest purpose, may give in evidence, even at common law, the truth of the words when such evidence will tend to negative malice and the intent to defame. See also Ripps v. Herrington, 241 Ala. 209, 1 So.2d 899; Comer v. Advertiser Co., 201 Ala. 159, 77 So. 685; 33 Am.Jur. p. 299; 12 A.L.R. p. 1029, note 1; State v. Payne, 87 W.Va. 102, 104 S.E. 288, 19 A.L.R. p. 1467; Riley v. State, 132 Ala. 13, 31 So. 731; Graves v. State, 9 Ala. 447.

We are therefore, of the opinion that the court committed error in sustaining...