McBee v. Fulton

• Decision Date: 25 January 1878
• Citation: 47 Md. 403
• Parties: WILLIAM MCBEE v. C. C. FULTON and A. K. FULTON.
• Court: Maryland Court of Appeals

47 Md. 403

WILLIAM MCBEE v. C. C. FULTON and A. K. FULTON.

Court of Appeals of Maryland

January 25, 1878

LIBEL.

APPEAL from the Circuit Court for Howard County.

The appellant sued the appellees, the editors and proprietors of a daily newspaper called "The Baltimore American and Commercial Advertiser," published in Baltimore City, for the following alleged libel upon him, which appeared in that paper on the 25th of September, 1875, under the heading " A Ruffian Caged."

"For several weeks past the police of the North-Western District have been endeavoring to make the arrest of a man named Wm McBee, who has occasioned considerable trouble in various neighborhoods. It appears he is a low character who habitually frequents the streets and always seeks to throw himself in the way of school girls, often insulting them with indecent remarks and actions. In some instances he would wait around the schools until the dismissal of the pupils, and then would exhibit the greatest importunity in pressing his company upon them. This man and his reputation became so extensively known in many of the female schools that he was feared by the scholars and numerous precautions adopted to protect the girls from his insults.

For several days past he had been visiting the locality of a well-known and fashionable school, and created the greatest annoyance to the young ladies by his persistent familiarities and vulgar insults. The police were notified and yesterday succeeded in arresting him.

He was given a hearing in the afternoon, when a number of young ladies who had been approached testified as to the facts as above narrated. Justice McCaffray committed him for the action of the Grand Jury."

The defendants pleaded,

1st. Not guilty; and 2nd, that the said alleged defamatory writing set out in the declaration is true. Upon these pleas issues were joined and the case proceeded to trial.

The plaintiff offered in evidence the libellous publication declared on, and two substantial repetitions of the same after suit brought. He then further offered evidence tending to show that he was a laboring man--a mechanic--having a large family to support from the fruits of his labor; the wealth and position of the defendants, and the extent of the circulation of the "American" newspaper, in which the libellous publications appeared; and that the defendants were the editors, publishers and proprietors of the said paper; and here the plaintiff rested his case.

First Exception.--The defendants, to sustain the issue on their part, offered evidence tending to prove that the plaintiff was arrested and taken before Justice McCaffray, upon a charge of indecent exposure of person, and that an investigation and hearing was had upon said charge before said justice, and witnesses examined thereat, but no witnesses were produced or examined on the part of plaintiff and upon said examination the said justice committed the plaintiff for the action of the grand jury; and they further offered evidence tending to prove, that said justice, at the termination of said examination, narrated the facts as they had been given in evidence before him on examination, to the reporter of the "American" newspaper, and that the narrative of facts elicited upon said examination, as set out in said supposed libel, so far as the same appears to be a narrative thereof, is a substantially true summary of said facts as detailed to him by said committing magistrate; and the defendants further offered evidence tending to prove that said narrative was prepared and published in said paper by said reporter, as agent of the defendants, from the information thus furnished to him by said justice, as and for a correct narrative thereof.

And the defendants further offered evidence tending to prove, that they had no acquaintance with or any knowledge of the existence of the plaintiff prior to said publication. To this offer the plaintiff, by his counsel, objected, but the Court overruled the objection, and permitted the witness to testify under the offer made; to which ruling and decision the plaintiff excepted.

Second Exception.--The defendants, further to sustain the issue on their part, offered evidence by several witnesses tending to show that they saw a man making indecent exposures of his person to them on the morning of September 24th, 1875, at about the hour of half-past eight o'clock, and on two other occasions, and whom the said witnesses identified as the plaintiff.

To this testimony of the defendants the plaintiff offered evidence in rebuttal, and for that purpose offered in evidence the record of the trial and acquittal of the plaintiff on the charge of indecent exposure of his person, on the occasions referred to, by the Criminal Court of Baltimore City.

But the defendants objected to the admissibility of the evidence so offered; and the Court having sustained the objection, the plaintiff excepted.

Third Exception.--And the plaintiff, further to sustain the issue on his part, offered the testimony of several witnesses, tending to prove that at the time of the committal of the alleged offence the plaintiff was absent some two or three miles from the locality where it was said the indecent exposure of his person was made.

And the plaintiff, further to sustain the issue on his part, offered the testimony of a number of witnesses, tending to prove that they had known the plaintiff for many years, and that he was a man of good moral character. To this offer to prove the plaintiff's good moral character the defendants objected, and the Court sustained the objection, but ruled that the plaintiff could show what his character was for "delicacy, modesty and chastity:" and it was shown to be good for delicacy, modesty and chastity. To this ruling of the Court sustaining defendant's objection, and to the ruling restricting plaintiff's offer, as above stated, the plaintiff excepted.

After the evidence was concluded, several prayers were offered on each side, by which questions were presented for the decision of the Court, (1) as to the privileged character of publications of preliminary proceedings before justices of the peace: (2) as to the fairness of comments accompanying the narration of the matters of fact charged in the alleged libel: (3) as to the character of the proof necessary under a plea of justification where crime is imputed to the plaintiff: (4) as to the extent of the damages to be awarded, if the jury should find for the plaintiff: and (5) as to the legal presumption of malice in cases of libel and the necessity of proving express malice. To the rulings of the Court below upon the questions thus presented, the plaintiff excepted and took this appeal. The questions raised by the exceptions are fully discussed in the opinion of the Court.

The cause was argued before BARTOL, C.J., BOWIE, MILLER, ALVEY and ROBINSON, J.

Alex. H. Hobbs and J. Thomas Jones, for appellant.

1st. The evidence contained in the first exception ought to have been excluded. It was merely preliminary and ex parte in its character, and should not have been admitted as a bar to the action, which was really the ground of objection. This species of evidence is everywhere excluded by the Courts, except where there are local statutes authorizing the admissibility of it, as we shall show. Were it not so, the greatest injury might be inflicted on individuals, without any timely opportunity to defend themselves against ex parte charges.

Unfavorable impressions once produced on the public mind would frequently be difficult and often impossible to correct, and remove the damaging error by reversing public sentiment. Such a course of procedure does not promote the cause of public justice, but works, in many cases, irreparable wrong to innocent parties; and whether innocent or guilty, the publication, more frequently than otherwise, causes persons who are perhaps to sit in judgment of the matter to form premature opinions on purely ex parte statements.

Every man accused is entitled to a fair and impartial trial, but it is mockery of remedial justice to hold out the the assurance of fair trials, if the avenues of justice are polluted by irresponsible, reckless emanations through the public press, which are disseminated almost without limit, and are read by thousands eager to enjoy the latest sensation, and involuntarily, it may be, become themselves the media of further local circulation. The law, it is submitted, when properly administered, will arrest this lamentable state of things. 1 Starkie on Slander, pages 265-275, (marginal;) 1 American Leading Cases, 218, (5 th Edition, notes by Hare and Wallace;) Stanley vs. Webb, 4 Sandf. S. C., 24, (1850;) Matthews vs. Beach, 5 Sanf S. C., 264, (1854;) Cincinnati Gazette Co. vs. Timberlake, 10 Ohio State Reps., 548, (1860;) Usher vs. Severance, 20 Me., 9.

In Duncan vs. Thwaites, 3 B. & C., 582, it was held that where the justice has merely the power to commit or bail, the report of the proceedings had before him is not privileged. In such cases no one has the right to report the proceedings, and if he does, it is at his peril. Good intentions or belief in the truth of what he reports avails nothing. 1 American Leading Cases, 266 and 267.

The justice before whom the examination takes place has no rightful authority to report, and per consequence no one receiving the report from him and publishing it is justified. Even the report of counsel engaged in the cause will not protect any one. (4 Sandf. S. C., 26.) Report " in substance" affords no protection. A plea that the publication "was nothing more than a fair, true and correct report in the newspaper" is not sufficient. Ibid, 28.

2nd. The record of the plaintiff's acquittal was clearly admissible as...