People v. FullerELGIN, A. & S. TRACTION CO.

• Decision Date: 19 February 1909
• Citation: 87 N.E. 336,238 Ill. 116
• Parties: PEOPLE v. FULLER.
• Court: Illinois Supreme Court

238 Ill. 116

87 N.E. 336

PEOPLE

v.FULLER.

Supreme Court of Illinois.

Feb. 19, 1909.

Error to Appellate Court, Second District, on Error to Circuit Court, Lee County; O. E. Heard, Judge.

Edward C. Fuller was convicted of criminal libel, and from an affirmance thereof by the Appellate Court (141 Ill. App. 374) he brings error. Affirmed.William Barge, Brooks & Brooks, and E. E. Wingert, for plaintiff in error.

W. H. Stead, Atty. Gen., C. H. Wooster, State's Atty. (A. C. Bardwell and E. H. Brewster, of counsel), for the People.

Plaintiff in error was indicted for criminal libel in the circuit court of Lee county, and upon trial was convicted and sentenced to pay a fine of $200 and costs. This conviction was affirmed by the Appellate Court, and a writ of error was thereafter sued out from this court.

The indictment consisted of two counts, the first of which charged defendant with publishing in a newspaper called the Dixon Daily Sun a false, malicious, and defamatory libel concerning one Walter B. Merriman, with intent to vilify and defame him and to expose him to public hatred and contempt. The article is set out in full in the indictment. Its heading is as follows: ‘Money Illegally Filched-Large Sums Found to Have Been Taken by Treasurers Merriman and Sterling.’ It then recites that the system of alternation in the office of county treasurer of Lee county has been an expensive one for the taxpayers; that the law provides that a county treasurer cannot succeed himself; that John W. Sterling was elected county treasurer in 1898, and was succeeded by Walter B. Merriman, and for a time Sterling was under Merriman and now is a candidate for the offiee; that the board of supervisors in September, 1898, fixed the salary of the county treasurer at $1,200 per year, and deputy hire at $800; that the statute provides that the county treasurer shall receive $500 per year as supervisor of assessments, which law went into effect July 1, 1898, and was in line with the general tendency to raise the salaries of county officers; that Sterling could not legally have drawn any money not provided for by the supervisors or by the provisions of this law. The article then continued with a long account of the actions of Sterling while he was county treasurer, whereby he is alleged to have drawn certain sums for clerk hire and miscellaneous expenses. The article then had a headline entitled ‘W. B. Merriman More Greedy,’ and under it alleged that, by the will of the voters and taxpayers, Merriman succeeded Sterling as county treasurer in December, 1902, and took the office with the same legal provisions and salary under which Sterling held it; that the board of supervisors, at its December meeting of that year, fixed his salary and deputy hire at the same figure as for Sterling; and that in three years thus far reported Merriman had illegally drawn, over and above all the money he was legally entitled to, the sum of $802.30. After giving an itemized statement of the sums which he had drawn in 1903, 1904, and 1905, respectively, it continued as follows: ‘According to the records Mr. Merriman has illegally drawn the following amounts: Dec. 1903, misc. exp., $57.97; Dec. 1903, pub. acct. and ext. clerk hire, $656.43; Dec. 1904, misc. exp., $48.68; Dec. 1905, misc. exp., $39.22; total, $802.30.’ The article then stated that the Sun had theretofore charged that Merriman and Sterling had overpaid the tax collectors of Dixon township to the amount of $1,116.08, and that at the time that charge was made these officials and the machine newspapers of the county had contended that this was not true, and a general effort had been made along the line to befog the public mind in regard to the matter, and many misstatements were published and given circulation; that these tax collectors had been made to pay the money back into the treasury, and that Merriman and Sterling were the only public officials who could know how much the collectors were drawing for their services, and the censure for this laxity of official duty rested upon them; and the question official duty rested upon them; and the question was asked why it was not just and right that Sterling and Merriman should also return the funds drawn by them in excess of their legal compensation. The article further stated that if these gentlemen were not satified with their legal compensation they should not have sought the office, and Sterling should not seek it again.

The second count of the indictment charged as a libel only the heading of the article as above set forth.

CARTER, J. (after stating the facts as above).

Plaintiff in error first contends that the article as set out in the first count is not libelous in its nature, as it does not charge Merriman with a crime, but only with having drawn money from the treasury without previous authorization from the board of supervisors, and that the word ‘filch’ does not necessarily import a crime. Under the statute any malicious defamation tending to impeach the honesty, integrity, virtue, or reputation of another, and thereby to expose him to public hatred, contempt, ridicule, or financial injury, is a libel. It is not necessary that it should amount to a charge of crime. The charge is that Merriman filched large sums by illegally taking, in three years, $802.30 to which he was not entitled. The established rule in this state is that the words in an action of libel must be taken in the sense which the readers of common and reasonable understanding would ascribe to them; that is, in their ordinary or common acceptation. Nelson v. Borchenius, 52 Ill. 236;Barnes v. Hamon, 71 Ill. 609;Ransom v. McCurley, 140 Ill. 626, 31 N. E. 119. All the words in the article are to be considered, and when they are all considered together the question is, how would they be understood by men of common and reasonable understanding? The primary and ordinary meaning of the word ‘filch’ is to steal, and carries with it also the idea of secrecy. The definitions ‘to steal privily,’ ‘to pilfer,’ ‘to steal, especially in a small, sly way,’ convey these ideas. The definitions ‘to take wrongfully from another,’ ‘to take from another in an underhand way, as by violation of trust or good faith,’ are no better for the plaintiff in error. The synonyms usually given for ‘filch’ are ‘steal,’ ‘thieve,’ ‘rob,’ ‘purloin,’ ‘pilfer.’ The charge against a public officer that by a breach of trust or wrongfully he has taken from the public treasury money to which he was not entitled certainly tends to impeach his honesty and integrity and to expose him to public hatred and contempt, whether it amounts to a charge of statutory crime or not. By no refinement of reasoning or construction can it be held that the article charges less, even without the headlines, than that Merriman intentionally took for his own use from the county $802.30 to which he knew he was not entitled. Such a false charge is a libel.

The further contention is made that the indictment should have been quashed because it did not aver that the article had any of the tendencies required by the statutory definition of libel. We think the averments of the indictment are sufficient under the statute. Clay v. People, 86 Ill. 147;Crowe v. People, 92 Ill. 231;People v. Seeley, 139 Cal. 118, 72 Pac. 834. The article itself plainly tended to impeach the honesty and integrity of Merriman and to expose him to public hatred and contempt, and it was not necessary to allege that it had such a tendency.

The claim is next made that the publication of the article was privileged, as the criticism was directed against public officials. Public conduct of all public officers is a matter of public concern and may be made the subject of fair and reasonable criticism, but the privilege does not extend to false and defamatory statements imputing criminal offense or moral delinquency to the officer in the discharge of his official duties. Rearick v. Wilcox, 81 Ill. 77.

Section 179 of our Criminal Code (Hurd's Rev. St. 1908, c. 38) provides: ‘In all prosecutions for libel, the truth, when published with good motives, and for justifiable ends, shall be a sufficient defense.’ It is insisted that the record established such a defense. We find nothing to support the allegation that Merriman filched or stole any money. This part of the charge was therfore untrue. The specific charge made against him in the article was that in three years of his term as county treasurer he had illegally drawn, over and above the money he was legally entitled to, the sum of $802.30, as itemized above. Prior to his election Merriman's compensation was fixed at $1,200 and his clerk hire at $800 a year. No amount was fixed for stationery, fuel, or other expenses of his office. Of the sum charged to have been illegally taken by Merriman, the proof shows $656.43 was paid out in December, 1903, in connection with the preparation and publication of the assessment roll. Section 29 of the act of 1898, for the assessment of property (Laws 1897, Ex. Sess. p. 45), provided that the assessment of real estate should be published in full by the county treasurer every four years, and the personal assessment every year, and that the expense thereof should be paid out of the county treasury. The evidence shows that $594.43 of the $656.43 was paid by Merriman to the variousnewspapers of the county for the publication of the assessment roll, as provided in the statute. The county board had made no provision for the payment of this bill, and it was not included in the $800 clerk hire as fixed by the board of supervisors. Under the provisions of the statute it was a legitimate expense, which the county treasurer had a right to pay. The balance of the $656.43, being $62, was paid for extra clerk hire made necessary in preparing the assessment roll. The record shows that before Merriman was elected as county treasurer the county board adopted the following recommendation of its...