Raker v. State

• Decision Date: 07 January 1897
• Docket Number: 8216
• Citation: 69 N.W. 749,50 Neb. 202
• Parties: W. S. RAKER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

69 N.W. 749

50 Neb. 202

W. S. RAKER v. STATE OF NEBRASKA

No. 8216

Supreme Court of Nebraska

January 7, 1897

ERROR to the district court for Douglas county. Tried below before SCOTT, J. Reversed.

REVERSED AND REMANDED.

James Hassett, E. C. Strode, and W. S. Summers, for plaintiff in error.

A. S Churchill, Attorney General, and George A. Day, Deputy Attorney General, contra.

OPINION

NORVAL, J.

W. S Raker was convicted in the district court of Douglas county of the publication of a criminal libel, and sentenced to imprisonment in the penitentiary for the period of one year. He has brought the record to this court for review, alleging forty-four grounds for reversal of the judgment pronounced against him, all of which will not be noticed, for the reason that to do so would necessitate our writing a treatise on the law of criminal libel and criminal procedure as well, which task we neither have the time nor inclination to now undertake. This opinion will be confined to a consideration of but a few of the principal questions raised.

The defendant, on March 1, 1895, was the editor and publisher of the Gretna Reporter, a weekly newspaper, published in Sarpy county, this state, and in the issue of his paper of the above date appeared the following article of and concerning Job Babbitt, the complaining witness, who was foreman of the grand jury then in session in the city of Omaha: "Job Babbitt, the foreman of the federal grand jury, now in session at Omaha, and also a de facto member of the Christian church, is untiring in his efforts to know the facts as well as to listen to the testimony as to the evils existing in the 'Gate City.' Accordingly, one night last week, he, together with a party of his colleagues, took advantage of the absence of his religious associates to visit one of the dives in the burnt district to while away an hour, and see Omaha by gaslight, listen to the entrancing music, but we hope not to cultivate the acquaintance of the sirens that danced attendance on them. At any rate the party were comfortably enjoying a cigar around a table from which the glasses had not yet been removed when our reporter entered. He was naturally somewhat surprised but reasoned that that was part of their business and let it go at that. The object of their business will doubtless be made known when the indictments are returned." The information charges that the defendant in Douglas county, "unlawfully, feloniously, and maliciously contriving and intending to injure, scandalize, and vilify the good name and reputation of one Job Babbitt, and to bring him into hatred and contempt, ridicule, and disgrace, unlawfully, feloniously, and maliciously did publish a certain false, malicious, and defamatory libel of and concerning the said Job Babbitt in the Gretna Reporter, a weekly newspaper printed and published in the town of Gretna, Sarpy county, Nebraska, and having a general circulation, also then published and having a circulation in Douglas county, Nebraska, in a part of which said false, scandalous, malicious, and defamatory libel were and are contained the following false, malicious, scandalous, and libelous words and matters of and concerning the said Job Babbitt, to-wit: [Here follows that portion of the article above set forth, commencing with 'accordingly one night last week' and ending with 'danced attendance on them,' together with the innuendoes set out in the information.]" A demurrer to the information was overruled by the trial court, which decision is the first ground of complaint in the brief filed. This point cannot be considered, for the reason the ruling on the demurrer is not made the basis of any one of the assignments in the petition in error.

Objection is made to the first instruction by the court on its own motion, which undertook to state to the jury all the material averments contained in the information, but was not wholly successful in that regard. The jury were told, inter alia, the information charged that the alleged libelous article was published "in the Gretna Reporter a weekly newspaper printed and published in the town of Gretna, Sarpy county, Nebraska, and having a general circulation in Douglas county." It is the quoted portion of the instruction which the defendant assails, and the criticism directed against it is well merited. The information contained no averment to the effect that the Gretna Reporter was a newspaper of general circulation in Douglas county, yet the jury were told by the first instruction that it did so allege, while the eighteenth paragraph of the charge advised the jury that the information stated that the paper "in which the alleged libel was published by the defendant was a newspaper having a general circulation," not limiting it to any county, and that the publication of a false and malicious libel in a newspaper having a general circulation constitutes a felony punishable by imprisonment in the penitentiary; but if the paper did not have such a circulation, the publication of such an article therein would not be libel, but misdemeanor merely. The different parts of the charge were contradictory and conflicting upon the question of the character of the circulation of the paper, and tended to confuse and mislead the jury in their deliberations. If the Gretna Reporter merely had a general circulation in one county, as the court by the first instruction so directed the jury was the allegation of the information, then, under the decision in Koen v. State, 35 Neb. 676, 53 N.W. 595, no felony was charged against the accused, but at most a misdemeanor. The jurors may have believed that the defendant was being tried alone for the lesser...