People v. Glassman

• Decision Date: 09 December 1895
• Docket Number: 584
• Citation: 42 P. 956,12 Utah 238
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. WILLIAM GLASSMAN AND THE STANDARD PUBLISHING COMPANY, A CORPORATION, APPELLANTS

42 P. 956

12 Utah 238

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. WILLIAM GLASSMAN AND THE STANDARD PUBLISHING COMPANY, A CORPORATION, APPELLANTS

No. 584

Supreme Court of Utah

December 9, 1895

APPEAL from the District Court of the Fourth Judicial District. Hon H. W. Smith, Judge.

William Glassman, editor of the Ogden Standard and the Standard Publishing Company, a corporation, were convicted of criminal libel, and appeal.

Reversed.

Mr. L R. Rhodes, Mr. J. D. Murphy and Messrs. Miner & Hiles, for appellants.

Mr. J W. Judd, United States Attorney, and Mr. W. L. Maginnis, Assistant United States Attorney, for the People.

BARTCH, J. MERRITT, C. J., concurs. KING, J. concurring in part and dissenting in part.

OPINION

BARTCH, J.:

The defendants were indicted for libel, convicted, and sentenced each to pay a fine in the sum of $ 500, and the defendant Glassman, in default of payment of fine, to be imprisoned until the same was paid. A motion for a new trial was overruled, and thereupon an appeal was prosecuted to this court, and many errors assigned. The indictment, among other things, charges that the defendant Glassman was the editor of a certain newspaper called the Standard, and that the defendant the publishing company was the owner of the said newspaper; that on the 30th day of October, 1894, the said company unlawfully, willfully, and with malicious intent to injure one L. R. Rogers, did write and publish a false, scandalous, malicious, and defamatory libel of and concerning the said L. R. Rogers. The alleged libelous article charges, substantially, that L. R. Rogers is not a fit and proper person to be elected a member of the constitutional convention, and in support of this position refers to the record in a criminal case,--the trial of one Borel for the murder of one George Lewis. The article states that Lewis, a "sure thing" man, deliberately stole from Borel, who was a sheep herder, $ 1,600, by means of a certain game of chance; that Rogers had been acting as attorney for Lewis; that Borel was induced to employ Rogers, and pay him a fee of $ 25, with the understanding that Lewis would be arrested, and the money returned; and that Borel brooded over the matter, became insane, and killed Lewis. The article also refers to Borel's testimony at the trial, and to the fact that it was published in the Standard at that time, and stated that Rogers could have had Lewis arrested and confined, and averted the murder, but, instead of that, Borel was arrested, and confined under bond as a witness. The article further charges that when Rogers was prosecuting attorney six or seven men were arrested for criminal trespass, some of whom were his clients, and were discharged without hearing the prosecuting witness or investigating the case; and that a certain woman of New Orleans, for whom he managed some business concerning an estate, wrote letters to certain business men in Ogden, which did not show him a model administrator. The article then asks the people to defeat Rogers in the election for members to the constitutional convention, in order that dishonesty and corruption may be repudiated. The colloquium in the indictment recites that the article imputed to Rogers that when he was prosecuting attorney he was guilty of misfeasance and malfeasance in office, and that, when his friends or clients were charged with crime, he was guilty of dishonest and unprofessional practices, and failed to do his duty as an officer under oath, and was guilty of unprofessional and dishonest conduct in relation to the estate regarding which the letters were written by the woman in New Orleans.

The first question raised in the bill of exceptions which it is deemed necessary to consider is whether the court erred in refusing to allow the witness Gatrel, court stenographer, to read, on the part of the defense, from his stenographic notes, the testimony of Eugene Borel, given on his trial for the murder of Lewis, on the subject of the employment of Rogers by Borel to recover his money, of which he claimed Lewis had robbed him, and as to what Rogers did in the matter. It appears this testimony was offered for the purpose of rebutting malice, and to show that the alleged libelous article, in so far as it related to the subject of Borel's testimony, given in open court, in the case of People v. Borel, was a true and fair report thereof. This was material, because, if said article contained a fair and true report of such testimony, and was published in good faith, without malice, it was privileged under the statute which provided that "no reporter, editor, or proprietor of any newspaper is liable to any prosecution for a fair and true report of any judicial, legislative, or other public official proceedings, or of any statement, speech, argument, or debate in the course of the same, except upon proof of malice in making such report, which shall not be implied from the mere fact of publication." Comp. Laws Utah 1888, § 4495. Clearly, this statue is broad enough to include the evidence of witnesses adduced in a judicial proceeding, for such evidence consists of statements made in the course of such proceeding. A newspaper may, therefore, publish a "fair and true report" of the evidence produced in a judicial proceeding, being liable for such publication only when the same is made maliciously, for the purpose of injury. It follows as a necessary consequence that if a reporter, or an editor, or a publishing company becomes the defendant in a prosecution for libel, based on a publication referring to such evidence, such defendant will be permitted to introduce the testimony to which such publication referred, for the purpose of showing that such publication, or any portion thereof, is a fair and true report of such testimony; and, if this be shown, then the publication is so far privileged that no malice will be inferred from the mere fact of publication; and, in such event, in order to convict, the prosecution must affirmatively show express malice on the part of the defendant. The burden of showing that the publication was made with malicious intent is thus cast upon the prosecution, and as to whether or not malice did actually exist becomes a question of fact for the jury, to be determined from all the evidence admitted on the trial. It appears that the prosecution realized the rule of law applicable under the circumstances disclosed by the bill of exceptions in this case, for, in addition to the alleged libelous publication, it introduced in evidence other publications and statements, in making out its case, tending to show malice. The prosecution having done this, the defendant unquestionably had the right to negative malice, and to show that the alleged libelous publication was a fair and true report of the testimony of Borel, given in the judicial proceeding to which such publication referred. For these purposes the evidence in question was proper and material, and, Borel being without the jurisdiction of the court, the stenographer who took the evidence referred to was a competent witness. In every case where a publication is made the foundation of a criminal action for libel, malice is an essential ingredient, and therefore any evidence which tends to show a want of malice is admissible. So, to rebut malice, any mitigating circumstances, or such as show a justifiable motive, may be admitted, and likewise any evidence which tends to show that the charges contained in a libelous publication are true, because, if a publication defamatory in character is found to be false, it is itself evidence of a malicious intent, and such evidence may be admitted for the purpose of repelling the legal inference of malice, even though it be insufficient in justification. Comp. Laws Utah 1888, § 4492; Cooley, Torts (2d Ed.) 257; White v. Nicholls, 3 How. 266, 11 L.Ed. 591; Kennedy v. Holborn, 16 Wis. 457; Holt v. Parsons, 23 Tex. 9; O'Donaghue v. McGovern, 23 Wend. 25.

It is further complained that in the course of the trial the court sustained an objection of the prosecution to the following question, propounded to the witness Glassman, one of the defendants, by his counsel: "I will ask you to state to this jury upon what evidence the publication was made in the Standard respecting the Borel and Lewis affair." On what ground the objection was based does not appear from the bill of exceptions. It does appear therefrom, however, that the question was asked for the purpose of showing that the publication complained of was not made with a malicious intent, and it is therefore insisted that it was competent and that the sustaining of the objection was error. The evidence shows that the prosecuting witness, L. R. Rogers, was a candidate for the office of member of the constitutional convention. He was thus seeking to assume the duties of a high public office, in which the public had the gravest and most serious concern. In sustaining the objection the court remarked, in the presence of the jury, that a candidate for office offered his character to the public to the "extent that private communications may be made in regard to him." From this statement the natural inference would be that an editor or manager of a newspaper had no right to investigate the character and qualifications of a person who presented himself as a candidate for office, conferred by the people, and publish the result of such investigation, if it contained anything defamatory, without rendering himself liable for libel, no matter how corrupt or unfit such candidate might be to be intrusted with public interests. This we do not conceive to be the law, for the rule appears to be well settled by an unbroken line of authority that every candidate for public office is amenable to public...