Leavy v. State
| Decision Date | 24 February 1934 |
| Docket Number | No. 9313.,9313. |
| Court | Georgia Supreme Court |
| Parties | LEAVY. v. STATE. |
1. Although an indictment or information for the offense of libel may be based upon a published article which is lengthy and is set out in full, yet, if the article contains any matter that is in fact libelous, the accusation is not fatally defective and subject to general demurrer merely because the article also contains much that is not libelous and the libelous matter is not singled out and the prosecution based thereon.
2. While the instruction to the jury as given by the trial judge may have stated the rule of criminal responsibility too strictly as regards an editor, the error, if any, was harmless to the defendant in this case, in view of the admission contained in his statement to the jury.
3. The judgment of the Court of Appeals affirming the judgment of the trial court was not erroneous for any reason assigned.
Certiorari to Court of Appeals.
C. H. Leavy was convicted of libel, the conviction was, affirmed by the Court of Appeals (45 Ga. App. 574, 165 S. E. 470), and defendant brings certiorari.
Affirmed.
J. T. Colson and C. H. Leavy, Jr., both of Brunswick, and Tyson & Tyson, of Darlen, for plaintiff in error.
O. C. Darsey, Sol., of Hinesville, for the State.
This case is here on the grant of a certiorari to review a judgment of the Court of Appeals affirming the conviction of the defendant, the petitioner in certiorari, of the offense of libel. See Leavy v. State, 45 Ga. App. 574, 1C5 S. E. 470.
1. It is contended, first, that the Court of Appeals erred in holding that the defendant's demurrer to the accusation was properly overruled by the trial court. A copy of the material parts of the accusation will be found in the statement of the case as made by the Court of Appeals, and the same will not be repeated here. The accusation was predicated upon an editorial alleged to have been published in a newspaper of which the defendant was editor, which editorial contained about 700 words and was set forth in full in the accusation. The only ground of the demurrer to which particular reference was made, in the petition for certiorari, was ground 2, "that the allegations are too vague, uncertain and indefinite as to charge the defendant with a violation of any penal statute." This was not a special demurrer, but was a mere general demurrer attacking the information as a whole upon the ground that it failed to charge the commission of any criminal offense. See Martin v. Bartow Iron Works, 35 Ga. 320, Fed. Cas. No. 9, 157; Green v. State, 109 Ga. 536, 35 S. E. 97; Darien Bank v. Clifton, 158 Ga. 65 (2), 118 S. E. 641; Douglas, Augusta & Gulf Ry. Co. v. Swindle, 2 Ga. App. 550 (3), 59 S. E. 600; Manry v. Little, 39 Ga. App. 681, 148 S. E. 312. In support of this ground of the demurrer, it is insisted that, "where an article is lengthy and contains matter that is libelous with much that is not, and the en-tire article is set out in full, the indictment is insufficient unless the libelous matter is singled out and the prosecution based thereon, " which contention is based upon a statement in 25 Cyc. 578, where the following cases are cited: Jackson v. State (Tex. Cr. App.) 77 S. W. 223; United States v. Callender, 25 Fed. Cas. 239, No. 14, 709. It is not contended that the editorial here under consideration was absolutely without any language which could be found to be libelous, and we cannot agree that, where an article is lengthy and contains matter that is libelous with much that is not and the entire article is set out in full, the accusation is, under the law of this state, fatally defective and subject to a mere general demurrer unless the libelous matter is singled out and the prosecution based thereon. Whether or not the accusation would have been subject to special demurrer upon this ground is a question not presented in the instant case.
We have examined the Jackson and Callender Cases, and with reference to the latter case it is sufficient to say that it does not touch the question. The decision in the Jackson Case, rendered by the Texas Criminal Court of Appeals, appears upon its face to hold squarely in favor of the proposition quoted, although it is seen from the report that the conviction was at first affirmed, one of the judges dissenting, and that it was on rehearing that the court held the information defective and reversed the judgment, the final conclusion being also by a divided bench. No other decision of like effect has been called to our attention, and we have been able to discover none by independent research.
Furthermore, the Texas statute (renal Code of Texas, 1895, art. 727), upon the subject of...
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