Lafferty v. Houlihan

• Decision Date: 01 May 1923
• Docket Number: No. 1872.,1872.
• Citation: 121 A. 92
• Parties: LAFFERTY v. HOULIHAN et al.
• Court: New Hampshire Supreme Court

121 A. 92

LAFFERTY

v. HOULIHAN et al.

No. 1872.

Supreme Court of New Hampshire. Coos.

May 1, 1923.

Transferred from Superior Court, Coos County; Kivel, Judge.

Action by Fred H. Lafferty against J. H. Houlihan and another. Verdict for plaintiff, and plaintiff and defendants except. Case transferred. Defendants' exceptions overruled.

Transferred upon exceptions to the denial of motions for directed verdicts by both the plaintiff and defendants, and upon exceptions by the defendants to the admission and exclusion of evidence, to the arguments of opposing counsel and to the court's charge.

The plaintiff, a police officer of Gorham, had occasion in the nighttime of December 31, 1920, to arrest two girls on a charge of larceny. One of them claimed to be under 17 years of age. The officer, understanding that he could not lock her in a cell, took both prisoners to a hotel, where he was assigned connecting rooms. On the following morning, the prisoners were arraigned in the municipal court, and, upon pleas of guilty, were bound over to the April term of the superior court. In default of bail, both girls, then admitting that they were over 17 years of age, were committed to Jail. Upon an information filed by agreement of counsel on January 13 following, the girls were arraigned and sentenced. As a result of statements of the prisoners then made to the sheriff, an information was filed in the superior court against the plaintiff, charging him with lascivious and lewd conduct with one of the girls while they were in his custody at the hotel, to which the plaintiff pleaded not guilty. On January 19, after investigation and conference with the trial justice, and acting upon the advice of counsel, the plaintiff changed his plea from "not guilty" to "nolo contendere" and accepted sentence. A fine of $25, no costs, was imposed, the fine being suspended during good behavior.

The defendants are publishers, of the Berlin Reporter, a weekly newspaper issuing from Berlin but having a large circulation in the adjoining town of Gorham. An account of the prosecution of the two girls had appeared in the paper. The libelous matter complained of was contained in two articles: (1) A news item; and (2) an editorial, published on January 20 and 27, respectively, material portions of which are as follows:

(1) "Policeman Pleads Nolo to Offense. Echo in Recent Theft Case of Furs by Boston Girls is Heard by Local Judge. Gorham Officer is Not Suspended from Office. Lafferty Fined $26"—Sentence Suspended During Period of His Good Behavior.

"Entrance into the bedchamber of two girls from Massachusetts at an early hour of the morning, hints that compliance with his demands might induce him to use his influence with the judge before whom their cases were pending, and other improper conduct were the allegations Police Officer Fred Lafferty of Gorham met on Wednesday before Judge Marble.

"A plea of guilty on appearing before the judge in chambers saved this officer from more serious consequences that might have ensued. As it was, Lafferty pleaded 'nolo' and was fined $25, consideration being given to his wife and family; and the fine was suspended during the period of his good behavior. * * *

"The police officer took connecting rooms; and the girls allege that Laffetry entered their chamber during the night, offered to use his influence conditionally, and acted in an otherwise improper manner. * * *

"Police Officer Lafferty was later released on his own recognizance; and, so far as can be ascertained, was still on duty while awaiting a disposition of the case. No action has been taken, though much comment is circulating throughout the vicinity, regarding the propriety of his suspension from office while facing such a serious charge."

(2) "Public Indignation a Factor. Unless the administration of the law in Gorham is to be a standing disgrace to the state of New Hampshire, the proper authorities will at once request Police Officer Fred Lafferty to resign, or, in case of his refusal, remove him summarily from office.

"A more disquieting situation could scarcely be found the country over. Here is a man approximately 40 years of age, married, with a family, who has admitted his guilt on a charge of 'lascivious behavior' towards two young women in the silent hours of the night at a Gorham hotel while they were in his custody as an officer of the law—and yet he is still a policeman. After alleging a variety of excuses for the prosecution of the case against him, and posing as a much injured man, 'framed' by his enemies, the defense proves to be nothing but a shell that cracks under the enormity of his crime—but he returns to duty, so far as is known, with hardly a reprimand for his actions. * * *

"Our readers are invited to put their own womenfolk metaphorically in the custody of such an officer for protection, with nothing but a few paltry dollars to keep him from straying off the path of duty once more. How does the prospect appeal to them? * * *

"One is glad to give credit to the fine spirit of compassion which prompted * * * [the] light sentence—none is more sincerely sorry for the family of the officer than the average citizen; one also remembers the accusation under which his two prisoners' characters were clouded—though this could hardly be used as an extenuating circumstance for such libertine behavior.

"Here is a blunt way of stating the case: Lafferty, the representative of the law for Gorham, has been found guilty on his own admission of conduct unbecoming a police officer. In any city of size his suspension from duty would have taken place from the moment the charges were preferred against him; and he would have been dropped instantly from the force upon their substantiation. Yet at the time of writing, so far as one knows, he still holds office in Gorham, charged amongst other duties with the protection of women and children, in spite of a growing murmur of disapproval, however, that may reach the state Capitol before it subsides. * * *

"But what shall be said of one who has proved false to his high public trust? * * * It is not fair to the citizen to permit a man who has just returned home with a plea of guilty to lascivious behavior on his lips to retain the responsible position by his own admission thus violated.

"These lines are impelled by a sense of public duty, and are written without desire to do otherwise than to right a wrong that will persist as long as the present status is undisturbed.

"For the good of the community, Police Officer Fred Lafferty of Gorham should be at once replaced, either through his voluntary act or by request of the selectmen. He has been treated leniently enough in court; let him show his sense of what is due the community by surrendering his uniform."

At the time of the publication of the news item of January 20, the plaintiff was still serving as a police officer of Gorham. His resignation was filed and accepted by the town on January 22, five days before the publication of the editorial of January 27, calling for his resignation or summary removal from office. The defendants learned of the resignation before the issue of the paper, and inserted on the front page thereof an item calling attention to the fact.

The plaintiff alleges that the defendants willfully, maliciously, and unlawfully published said articles, falsely accusing him of crime. The defendants, by brief statement, under the general issue, say:

"(1) That said articles were true. (2) That in publishing said articles, they' (said defendants) were not actuated by malice or ill will towards the plaintiff, but their only purpose was to give useful information to the town of Gorham and to the community, and to those who had the right and ought to know, in order that they might act on such information. (3) That at the time of said publication of said articles the plaintiff was a police officer in the town of Gorham, and that the defendants, without malice or ill will, believing and having probable cause to believe said articles to be true, published the same for the sole purpose of informing the people in the town of Gorham of the misconduct of the plaintiff. (4) The defendants also aver that the publication of said articles were only just and fair criticism of the plaintiff while acting as a public officer; and that said criticism was made upon a lawful occasion, upon probable cause and from good motives."

Other facts appear in the opinion.

Shurtleff, Oakes & Hinkley and Eri C. Oakes, of Lancaster, for plaintiff.

Sullivan & Daley, George F. Rich, and Edmund Sullivan, all of Berlin, for defendants.

SNOW, J. "Conductors of the public press have no rights but such as are common to all.* * * But in this country every citizen has the right to call the attention of his fellow citizens to the maladministration of public affairs or the misconduct of public servants, if his real motive in so doing is to bring about a reform of abuses, or to defeat the re-election or reappointment of an incompetent officer." Palmer v. Concord, 48 N. H. 211, 216 (97 Am. Dec. 605).

"If the end to be attained is justifiable; as, if the object is the removal of an incompetent officer, or to prevent the election of an unsuitable person to office, or, generally, to give useful information to the community, or to those who have a right and ought to know, in order that they may act upon such information, the occasion is lawful, and the party may then justify or excuse the publication. Where, however, there is merely color of a lawful occasion, and the party, instead of acting in good faith, assumes to act for some justifiable end merely as a pretense to publish and circulate defamatory matter, or for other unlawful purpose, he is liable in the same manner as if such pretense had not been resorted to." State v. Buruham, 9 N. H. 34, 41, 42 (31 Am. Dec. 217).

"In order to settle whether the occasion was lawful we must generally inquire into the motives...