Nicholson v. State

Citation24 Wyo. 347,157 P. 1013
Decision Date10 June 1916
Docket Number804
PartiesNICHOLSON v. STATE
CourtUnited States State Supreme Court of Wyoming

ERROR to District Court, Fremont County; WILLIAM C. MENTZER, Judge.

Thomas G. Nicholson was convicted of the crime of libel, and he brings error.

See also 23 Wyo. 482, 153 P. 749.

Affirmed.

John J Spriggs, for plaintiff in error.

The information is insufficient as the publication did not support the innuendos. Nothing may be added to the publication by innuendo to make the article libelous. (In re McDonald, 4 Wyo. 150; Rocky Mt. News Printing Co v. Fridden, 104 P. 956, 24 L. R. A. (N. S.) 891.) The article charged confiscation of a liquor license by a public official. This would not support an innuendo that the official was guilty of robbery. (Rocky Mt. News Printing Co v. Fridden, supra; Sackett on Instructions, Vol. 2, p. 1490.) Defendant was entitled to a change of venue when he produced the examining magistrate as a witness. The special prosecutors of the case were intensely prejudiced against defendant and did not act fairly, hence the conviction should be set aside. (Commonwealth v. Nicely, 130 Pa. 261, 18 A. 737; Vickers v. United States, 98 P. 473; People v. Lange, 90 Mich. 454, 51 N.W. 534; People v. Aiken, 66 Mich. 460, 33 N.W. 821, 11 Am. St. Rep. 512.) Unfair prosecutions are a public injustice. (Hurd v. People, 25 Mich. 405; Curtis v. State, 6 Cold. (Tenn.) 11; State v. Sanford, 1 Nott & McC. (S. C.) 512.) Special prosecutors should not be given authority to conduct the case. (McKay v. State, 90 Neb. 63, 132 N.W. 741, 39 L. R. A. (N. S.) 714.) Defendant had a right to comment upon the acts of a public official. (Ohio 3 C. D. 397.) The criticism was privileged. (State of Kansas v. Wilcox, 97 P. 372, 19 L. R. A. (N. S.) 225.) Good faith and an honest belief in the truth of the statements is a defense. (Coleman v. McLennan (Kan.), 98 P. 281, 20 L. R. A. (N. S.) 361.) The county attorney was permitting violations of Section 5909, Comp. Stats. 1910, and was subject to criticism. Instruction No. 4 was erroneous as malice cannot be presumed. (State v. Blaine, 124 P. 516.) Defendant was entitled to show all the circumstances under which he made publication including the sources of information (Underhill on Crim. Evi., Sec. 364 (2nd Ed.) Instructions numbered 7, 8, 9, 10 and 11 were highly prejudicial to defendant. Instruction No. 14 is inconsistent with No. 11. Instruction No. 17 is an attempt to state a matter as to taking from the jury the right to judge the law and the evidence. In criminal libel the jury has a right to judge the law and facts. (Art. 1, Sec. 20, Const.; Gardner v. State, 139 P. 474.) The jury had a right to say whether the article was privileged. (Cooley, Sec. 281; Odgers on Libel & Slander, 2 Ed., p. 710; Bank v. Henty, 7 App. Cas. 741; Murray v. Heinze, 17 Mont. 353, 42 P. 1057, 43 P. 714; State v. Heacock, 106 Ia. 191, 76 N.W. 654; Ross v. Ward, 14 S.D. 240, 85 N.W. 182, 86 Am. St. Rep. 746; Pittock v. O'Neil, 63 Pa. 253, 3 Am. St. Rep. 544; Duncan v. Williams, 107 Mo.App. 539, 81 S.W. 1175; Arnold v. Jewett, 125 Mo. 241, 28 S.W. 614; Heller v. Pultizer Pub. Co., 153 Mo. 205, 54 S.W. 457; Ukman v. Daily Record Co., 189 Mo. 378, 88 S.W. 60.) Instruction No. Special was highly prejudicial. It was to only a part of the jury, namely the minority and to matters not arising out of the evidence. (People v. Singh, 128 P. 421.) Instructions given out of time; (Sec. 6235, Comp. Stats. 1910), it directed the jury to consider the expense of the second trial and matter not in the evidence. The motion in arrest of judgment should be sustained. (Mellen v. Times-Mirror Co., 140 P. 277.) The motion for a new trial showed the admission of perjured testimony which defendant had no opportunity to rebut. The conviction should be set aside. (State v. Mounkes, 91 Kan. 653, 138 P. 410; Bernstein v. Schneider, 72 Misc. 479, 131 N.Y.S. 340; Serwer v. Serwer, 71 A.D. 415, 75 N.Y.S. 842; Seward v. Cease, 50 Ill. 228; Chapman v. Delaware L. & W. R. Co., 102 A.D. 176, 92 N.Y.S. 304; Wehrkamp v. Willet, 1 Daly 4.) This will be done in even civil cases. (Munro v. Callahan, 55 Neb. 75, 75 N.W. 151; McMurray v. McMurray, 67 Tex. 665, 4 S.W. 357.) Public welfare demands a free press. It was shown that the county prosecutor had permitted violations of the criminal statute, hence the criticism was justified. (State v. Wilcox, 97 P. 372.)

D. A. Preston, Attorney General, and Wilfred O'Leary, Deputy Attorney General, for the State.

Preliminary hearings are not required before filing informations charging misdemeanors, hence the refusal of the justice to grant a change of venue was immaterial. (Sections 6093-6094, Comp. Stats. 1910.) Moreover, no change of venue is provided for in preliminary examinations. (Chapter 397, Comp. Stats. 1910.) The bill of exceptions is defective and the matters complained of were not before this court. (Syndicate Imp. Co. v. Bradley, 6 Wyo. 171; Littleton v. Burgess, 16 Wyo. 58.) Conclusions to be drawn from the language of the libelous publication is a question for the jury and not for the court. (In re. McDonald, 4 Wyo. 150; Newell on Slander and Libel, 2nd Ed., p. 191; Patch v. Tribune Ass'n., 38 Hun 369; Maynard v. Firemen's Fund Ins. Co., 47 Cal. 207.) The ruling of the trial court as to the evidence of Mrs. Reynolds was correct. (40 Cyc. 2431; Conway v. State, 118 Ind. 482; Ward v. State, 85 Ark. 179; Jones v. State (Tex.) 163 S.W. 81; Moore v. State (Tex.), 144 S.W. 598; State v. Hughes (Kan.), 56 P. 142; State v. Walker, 133 Iowa 489; State v. Benner, 64 Me. 267; People v. Caldwell, 107 Mich. 374; State v. Draughn, 140 Mo.App. 263.) It is not necessary for the prosecution to call and examine all of the witnesses to the prosecution. (Ross v. State, 8 Wyo. 351; State v. Kilgore, 70 Mo. 546; Keller v. State, 123 Ind. 110; State v. Eaton, 75 Mo. 586; Coleman v. State, 111 Ind. 563.) The record fails to disclose wherein the special prosecutors, Norton, Sheldon and Stone were biased; the record is valid as to the grounds upon which jurors, Thiess, Gosnell and Graham were challenged; nor is it shown wherein there was an abuse of discretion in denying defendant's motion for a continuance; (McKinney v. State, 3 Wyo. 719); it is unnecessary to comment upon the evidence for the reason that there is no record of the evidence before the court. In libel cases it is for the jury to determine the law from instructions of the court in the same manner as the jury determines the facts from the evidence. (Oakes v. State, 33 L. R. A. (N. S.) 207; State v. Syphrett, 13 A. S. R. 616.) Instructions relating to evidence cannot be considered on appeal in the absence of the evidence. An article libelous per se carries a presumption of malice. (State v. Mason, 26 Ore. 273; Gallis v. Kilgo, 128 N.C. 402; Parsons v. People, 218 Ill. 386.) The giving of more than one instruction upon the same phase of the law is not reversible error. (Robinson v. State, 71 Neb. 142; People v. Lewis, 252 Ill. 281-286; People v. Cotton, 250 Ill. 338-343, 344.) The special instruction complained of is more favorable to the defendant than to the State and is not prejudicial; instruction Nos. 19-29 is supported by O'Rourke v. Lewiston, DS, Pub. Co. , 89 Me. 310. The remaining assignments of error contained in the motion for a new trial cannot be considered in the absence of the testimony.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

The plaintiff in error was convicted in the district court of the crime of libel and sentenced to pay a fine and the costs of prosecution. From that judgment he brings error.

It appears that a motion for a new trial was filed in the district court and denied; but the denial of that motion is not assigned as error in the petition in error, therefore, the only alleged errors which are here for consideration are those stated in the petition in error. There is among the papers filed in this court what purports to be a bill of exceptions which bears the filing mark of the clerk of the district court, but is not in any manner certified by said clerk as a part of the record or files in the case, and it does not contain or purport to contain all or any of the evidence, nor is it indexed as required by rule 10 of this court. (104 P. XII.) However counsel for defendant in error has not seen fit to move to have the purported bill stricken from the files, and as the bill might have been authenticated if timely application to withdraw it for that purpose had been made, we will consider such alleged errors as can be considered in the absence of the evidence.

It is contended that the information does not charge a crime. But upon the face of the information we do not think the objection well taken. The article, which was charged to have been published in a newspaper published by plaintiff in error, is too long to be set out here, and to do so would be of no benefit. But as we read and understand it, it contains much matter which fairly construed is libelous per se, and the jury must have so construed it by returning a verdict of guilty. The prosecuting witness, who was the county and prosecuting attorney for Fremont county, was charged by the published article with such misconduct in office that, if true, would render him unfit to occupy that position and would bring him into public scandal and disgrace. It is contended that as the article had reference to the conduct of a public officer it was privileged. It is true that the acts and conduct of public officers are open to criticism by the public press, and legitimate criticism however severe is the right and privilege of the press as well as others. When a newspaper contains a truthful statement of the acts and conduct of an officer it may comment upon,...

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16 cases
  • Sylvester v. Armstrong
    • United States
    • United States State Supreme Court of Wyoming
    • December 5, 1938
    ...to the nature of the particular transaction. 36 C. J. 1239, 1242. The question of privileged communication is dealt with in Nicholson v. State, 24 Wyo. 347. protection of the privilege may be lost by the manner of its exercise, although the belief in the truth of the charge exists. 36 C. J.......
  • Dworkin v. L.F.P., Inc., s. 89-15
    • United States
    • United States State Supreme Court of Wyoming
    • September 18, 1992
    ...Spriggs, 63 Wyo. at 427-28, 182 P.2d at 804 (quoting Nicholson v. State, 24 Wyo. 347, 157 P. 1013, 1015 (1916)). In Spriggs this court quoted with approval from Oakes v. State, 98 Miss. 80, 54 So. 79, 83, 33 L.R.A. (N.S.) If juries have the right to determine the law of libel for themselves......
  • Spriggs v. Cheyenne Newspapers, Inc., 2349
    • United States
    • United States State Supreme Court of Wyoming
    • July 1, 1947
    ..."the jury having the right to determine the facts and the law under the direction of the court". (Italics supplied) In Nicholson vs. State, 24 Wyo. 347, 157 P. 1013, court said concerning this clause: "To our minds this language clearly means that the court should instruct the jury as to th......
  • State v. Barlow, 108,830.
    • United States
    • United States State Supreme Court of Kansas
    • February 19, 2016
    ...Buchanan, 78 Wash.App. 648, 652–53, 898 P.2d 862 (1995) (prosecution ends when final judgment entered on the cause); Nicholson v. State, 24 Wyo. 347, 157 P. 1013 (1916) (prosecution does not end until final judgment pronounced). Even Jones recognized this general principle. Jones, 298 Kan. ......
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