Krasner v. State, 6 Div. 232.

• Decision Date: 22 January 1946
• Docket Number: 6 Div. 232.
• Parties: KRASNER v. STATE.
• Court: Alabama Court of Appeals

26 So.2d 519

32 Ala.App. 420

KRASNER v. STATE.

6 Div. 232.

Alabama Court of Appeals

January 22, 1946

Rehearing Denied Feb. 19, 1946.

Reversed on Mandate June 11, 1946.

J. T Johnson, of Oneonta, for appellant.

Wm. N McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.

The following charges were refused to defendant:

'2. The Court charges you, gentlemen of the jury, that each juror is required to be satisfied of the guilt of the defendant beyond a reasonable doubt before they are authorized to find a verdict of guilty, and each juror must be separately and segregately so satisfied to support a conviction.'

'5. The Court charges the jury that if any individual juror is not convinced of the defendant's guilt beyond a reasonable doubt, and to a moral certainty, the jury cannot convict.'

'14. The Court charges the jury that each juryman must be separately satisfied, beyond a reasonable doubt and to a moral certainty, that the defendant is guilty of the offense charged, or you cannot convict him.'

'23. The Court charges the jury that, if they are not satisfied beyond all reasonable doubt to a moral certainty, and to the exclusion of every other reasonable hypothesis but that of the guilt of the defendant, then they should find him not guilty, and it is not necessary to raise a reasonable doubt

that the jury should find from all the evidence a probability of the defendant's innocence, but such a doubt may arise even when there is no probability of his innocence in the testimony, and, if the jury have not an abiding conviction to a moral certainty of his guilt, it is the sworn duty of the jury to acquit the defendant.'

HARWOOD Judge.

The appellant was indicted for the offense of criminal libel in violation of Section 347 Title 14, Code of Alabama, 1940. The indictment was is the following form:

'The Grand Jury of said county charge that, before the finding of this indictment, Norman Krasner did unlawfully and maliciously publish of and concerning L. A. Bowers, the mayor of the Town of Warrior, the following libelous matter, to-wit:

"Mayor pockets over One Thousand Dollars of Warrior's Public Funds;' the said libelous matter had a tendency to provoke a breach of peace, against the peace and dignity of the State of Alabama.'

Appellant attacked the sufficiency of the above indictment both by motion to quash and demurrers, the ground being:

1. That it fails to allege any violation of the laws of Alabama and does not follow the Code form.

2. That it is violative of Sections 1, 4, and 6 of the Alabama Constitution, and of Amendments 1 and 14 of the United States Constitution, 'allowing and guaranteeing freedom of speech, freedom of press, due process of law, the right to life, liberty and the pursuit of happiness, the right to review, discuss and expose the conduct, deportment, incompetency and/or corruption on the part of a person or persons charged with the administration of government, or a division or subdivision thereof.'

3. That it is violative of Section 22 of the Alabama Constitution prohibiting any law making exclusive grants of special privileges.

4. That it is violative of Section 12 of the Alabama Constitution which provides:

'That in all prosecutions for libel or for the publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and 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.'

5. That said publication alleges that the Mayor of Warrior, a public official, received and kept certain fees while acting in an ex officio capacity in violation of Section 600, Title 37, Code of Alabama 1940, providing that the Mayor may remit fines and costs to the city or town, and in violation of Section 68 of the Constitution of Alabama providing that no municipal authority has the right to grant any extra compensation to any public officer, agent, or servant, during their term of office, or to increase their fees or compensation during such term.

The court denied the motion to quash the indictment and overruled the demurrers.

It is our opinion that the first ground alleging that the indictment fails to allege any violation of the laws of Alabama is without merit. In Brooke v. State, 154 Ala. 53, 45 So. 622, 623, our Supreme Court in discussing indictments for criminal libel wrote:

'Section 5064 of the same of Code, relative to the indictment, is as follows: 'An indictment for a libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter on which the indictment is founded; it is sufficient to state generally that the same was published concerning him, and the fact that it was so published must be proved on the trial.' No form is prescribed in the Code for the indictment; but it is manifest from the statute that the technicalities of the common law in the frame of an indictment for libel are not required. Indeed, it has been the policy of the Legislature to depart from all common-law technicalities, and to simplify pleading in indictments as much as possible consistent with the due administration of justice. The statute punishing libel does not define what libel is, as do statutes of some of the other states. We are therefore remitted to the common law to ascertain what is libel, and whatever at the common law amounted to a libel was subject to criminal prosecution. The only difference made by our statute is that the libel must be such as to have a tendency to provoke a breach of the peace. In 2 Wharton's Criminal Law (9th Ed.) 1598, it is stated: 'Whatever, if made the subject of civil action, would be considered libelous without laying special damage, is indictable in a criminal court.' But our statute (section 5063) makes a qualification of this by providing: 'Which may tend to provoke a breach of peace.' Moody v. State, 94 Ala. 42, 10 So. 670.'

Criminal libel has had numerous definitions. Perhaps as good as any is the definition found in Wharton's Criminal Law, 12th Ed. (Ruppenthal), as follows:

'A defamatory libel is matter published without legal justification or excuse, the effect of which is to insult the person of whom it is published, or which is calculated to injure the reputation of any person by exposing him to hatred, contempt, or ridicule. Such matter may be expressed either in words legibly marked upon any substance whatever, or by any object signifying such matter otherwise than by words, and may be expressed either directly or by insinuation or irony.'

Under Section 347 of Title 14, Code of Alabama 1940, the libel must be one which may tend to provoke a breach of the peace.

It is noted that the libellous matter set forth in the indictment is that 'Mayor pockets over One Thousand Dollars of Warrior's Public Funds,' without any explanation of the meaning of the words by innuendo. We do not think such explanation necessary in this case. One of the definitions given of the verb 'pocket' in Webster's New International Dictionary, 2nd Ed., Unabridged, is 'to take (money, etc.) esp. secretly or fraudulently.' A court should not close its ears to ordinary meanings commonly attached to words, and certainly in ordinary parlance the above words charged the Mayor with misappropriation of the public funds of Warrior as clearly as if the offense had been more artfully defined in the publication. Ultimate justice should not depend on art of language. With such meaning attached, then certainly the words were such as to lead to a breach of the peace, as well as falling within the Common Law concept of criminal libel.

It is our opinion that the action of the court in its treatment of the other grounds of attack on the indictment was correct, reasons for this conclusion appearing later in this opinion.

The constitutional rights and privileges, the right to expose incompetency in office, to discuss current happenings of the day, etc., set forth by appellant in defense of his actions may, we think, be jointly discussed and disposed of, the same general principles being applicable to all.

In Barton v. City of Bessemer, 234 Ala. 20, 173 So. 626, 628, Judge Knight said:

'Among the undoubted rights of the press may be mentioned right to advocate change in form of government by peaceful means; to expose incompetency and corruption on the part of those charged with the administration of the affairs of the government; and the right at all times to place before its readers, in printed form, the current happenings of the day.

'This constitutional liberty of the press is so intimately interwoven with the right to acquire and hold property, to enjoy life and the pursuit of happiness, that it falls squarely within the protection of section 1 of the Constitution, which guarantees to every citizen the right of life, liberty, and the pursuit of happiness, and also comes within the protection of section 6 of the State Constitution and of the Fourteenth Amendment to the Federal Constitution guaranteeing to every person due process of law, both judicial and legislative. Any denial to the press of this constitutional right by the courts, or by the Legislature, or any limitation superimposed upon this right, save for abuse, would inflict a wound just short of the heart upon this useful agency, so sedulously protected by the Constitution.' These rights and privileges are not absolute. They do not confer a right of licentious action. As said by Judge Story:

"The freedom of the press and of speech, which Congress, by the First Amendment to the Federal Constitution is prohibited from...