Pledger v. State

• Decision Date: 26 February 1887
• Parties: PLEDGER v. STATE.
• Court: Georgia Supreme Court

3 S.E. 320

77 Ga. 242

PLEDGER v. STATE.

Supreme Court of Georgia

February 26, 1887

Appeal from Atlanta city court; VAN EPPS, Judge.

W. F. Wright and Jas. O'Neal, for plaintiff in error.

H. C Glenn, Sol. Gen., contra.

HALL J.

Pledger was found guilty of the offense of libel, for writing and publishing in a newspaper printed in the city of Atlanta called "The Defiance," the following article of and concerning one George W. Adair, viz.: "After the Hon. H A. Rucker lost his position in the revenue service, for no other reason than that he was a negro, he commenced the business of a confectioner, having purchased the business from a white man; and at the end of a month, when the rent was due, a philanthropist, Adair by name, who is a great friend of the negro, called upon him and informed him of his desire to keep him hemmed in, for fear he might lose his civilization, and that, to win, it was not prudent that he should do business on that street. The consequence was that this young man had to sell out at a loss. Now, let colored men, when they want to rent houses, go to Messrs. E. M. Roberts, or Scott, or somebody else, and leave this old 'skunk' to himself, to 'stink' himself to death. Don't forget that it is Adair, the real-estate agent."

Upon being arraigned, he demurred to the indictment, because the article set out in the indictment is not libelous, and the matter alleged therein, if written and published, did not tend to blacken the memory of one who is dead, or the honesty, virtue, integrity, or reputation, of George W. Adair, and thereby expose him to public hatred, contempt, or ridicule. The demurrer was overruled, and Pledger excepted, and made a motion for new trial, on the following grounds, which was likewise overruled: (1, 2) The first and second grounds allege error in overruling the demurrer. (3) Because the "court refused, upon the request of counsel in writing, to charge that in all prosecutions or indictments for libels the truth may be given in evidence, and did charge that, if the same was given in evidence, they could nevertheless find the defendant guilty; the whole charge being adverse to this motion." The presiding judge gave only a qualified approval to this ground. (4) Because "nothing said by Pledger in his motion for continuance can be construed or taken against him; and if so, it amounts to no more in law than admissions or confessions." (5) Because "in the absence of proof of malice on the part of defendant against George W. Adair, the defendant cannot be legally convicted." (6) Because "the court refused to continue said case on account of the absence of W. C. Moore, by whom the defendant expected to prove that if such matter was written or published as charged, the same was furnished him as matter of news, occurring in the daily mutations incident to commercial transactions, and to rebut the idea of malice." (7) The seventh ground is disapproved by the court, and pronounced to be erroneous. (8) Because the court permitted Forrest Adair to repeat any testimony to the jury as to what conversation passed between him and Rucker and J. H. Lumpkin, the owner of the house, the said Pledger not being present. (9) Because the court forced A. W. Burnett, a witness subp naed upon the part of the state, who was indicted for the same offense, charged with publishing the identical words as alleged in the said indictment against said Pledger, at the same term of the court, and by the same grand jury, to testify in the said case as against said Pledger, who was then and there on trial, when the said Burnett declined, in the presence of the court, to so testify, because it tended to criminate himself, and sending said Burnett to jail until next morning, and again placing Burnett on the stand, and upon his again refusing to testify in said case, for the same reasons given the day before, imposing a fine then and there upon said Burnett of $50, and also imprisoning him 10 days in the common jail of said county, unless he would abandon his privilege as a witness, who, because of said fine and imprisonment, did testify in said case because of the coercion aforesaid. (10, 11) Because the verdict is contrary to law, to evidence, to the weight of evidence, and is without evidence to support it.

1. The demurrer was properly overruled. The matter set out in the indictment was libelous. Code, §§ 2974, 4521. The very nature of the charge imports malice against the prosecutor, and the avowed object for making it manifests a deep-settled purpose upon the part of the writer to injure his business; and, not being rebutted or explained by proof, the presumption stands. This disposes of the first, second, and fifth grounds of the motion.

2. The court properly refused the written charge set out in the third ground of the motion. There was no proof before the jury as to the truth of the statements made in the publication. It was error, in the absence of such proof, to charge as to the extent that the truth of the charge would justify the publication of the libel; but of this the defendant cannot complain, since a charge upon the subject was made at his suggestion; and whether it announced the correct rule of law or not, it did not under the proof injuriously affect any right of the defendant.

3. It was competent to give in evidence any statements pertinent to the issues on trial, although they were made by the defendant on oath in open court on his motion to continue the case. Such statements, being made voluntarily and without compulsion, or resort to other means affecting their competency, were certainly admissions or confessions free from suspicion, if they were not of the highest and most deliberate character; and it is not contended that the evidence was not pertinent to the issue. Code, §§ 3783-3785, 3794, 3795.

4. The continuance moved should not have been granted, because it did not appear that the absent witness had been subp naed, or that he could be reached by subp na, and his evidence procured at another term of the court; nor is it clear that...