Potter v. State

• Decision Date: 10 December 1919
• Docket Number: (No. 5564.)
• Citation: 216 S.W. 886
• Parties: POTTER v. STATE.
• Court: Texas Court of Criminal Appeals

216 S.W. 886

POTTER v. STATE.

(No. 5564.)

Court of Criminal Appeals of Texas.

December 10, 1919.

Appeal from Bexar County Court; Nelson Lytle, Judge.

F. N. Potter was convicted of criminal libel, and he appeals. Reversed, and prosecution ordered dismissed.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted of criminal libel in the county court for criminal cases of Bexar county, Tex., and his punishment fixed at seven months' confinement in the county jail.

The indictment in the case is as follows:

"In the Name and by the Authority of the State of Texas:

"The grand jurors for the county of Bexar, and state of Texas, duly organized as such at the October term, A. D. 1917, of the district court of the Thirty-Seventh judicial district of Texas, in and for said county, upon their oaths in said court, present that on or about the 21st day of July A. D. 1917, in the county of Bexar and state of Texas, F. N. Potter, with intent to injure J. D. Oppenheimer, did unlawfully, wickedly and maliciously publish, sell and circulate a malicious statement in printing and writing of and concerning one J. D. Oppenheimer and affecting the reputation of the said J. D. Oppenheimer to the tenor following, to wit:

"`Very Successful Fire.

"`Any one would think that the weather of late was hot enough naturally without trying to make it more so by artificial means but it never gets too hot for a nest of Jews when they can figure out a profit from the ruins of destroyed property.

"`This is the case of the big Oppenheimer fire of last Saturday in San Antonio when, after much patience, perseverance and considerable coal oil and 24 hour old rot gut whisky they finally succeeded in their hellish design to destroy the 4-story brick fire trap on Commerce street in which they did several kinds of business on a wholesale plan but the firemen confined their unholy efforts to their own property.

"`Insurance to the tune of $300,000, principally on a liquor stock that had been sold down pretty close recently, furnished the motive for the crime but from the freely expressed opinion of some prominent citizens of the Alamo City while the fire was trying to eat its way into the big building of the San Antonio Drug Company, they will have a hard time to make the collection. Had the Drug Company been caught in this trap, explosions would have occurred and all buildings and business in the wholesale district more or less damaged.

"`About the only way to keep a Jew from burning his property is to refuse him insurance and in this case we seriously doubt if the Oppenheimer Bank & Booze Company, Limited, succeeds in collecting the nicely estimated profit from their self-destroyed property. They ought not.

"`Note.—We have looked up the libel law governing above cases and find the following universal opinion which is still in effect: "That country newspapers are entitled to accuse Jews of incendiarism even though it be shown conclusively, that no insurance was being carried at the time of said fire, because it has been proved that goods has been sold at a rattling good profit after having gone through the first degree of a grand fire even when no insurance had been taken out and the stock was a total loss." (Opinion by Judge Chesty, Chief Justice of Corpulent Law, page 19c; paragraph $9.93; rehashed, digested (Kang, court), and marked down to below cost in every department.'

"The said F. N. Potter meaning by the aforesaid written and printed and published and circulated statement to charge that the said J. D. Oppenheimer to whom the same refers to and meaning thereby to convey the idea that the said J. D. Oppenheimer had been guilty of the penal offense of Arson against the peace and dignity of the state.

                         "Geo. C. Eichlitz
                            "Foreman of the Grand Jury."
                

Upon the back of this indictment appear the names of J. D. Oppenheimer, Henry Oppenheimer, Louisa Oppenheimer, Adelarde Oppenheimer, and others, as witnesses.

The appellant moved to quash the indictment, because the same charged no offense against the laws of this state, specifying objections thereto. We think the motion well founded....