Roberts v. Love

• Decision Date: 28 March 1960
• Docket Number: No. 5-2072,5-2072
• Citation: 231 Ark. 886,333 S.W.2d 897
• Parties: Paul K. ROBERTS, Appellant, v. W. L. LOVE et al., Appellees.
• Court: Arkansas Supreme Court

Page 897

333 S.W.2d 897

231 Ark. 886

Paul K. ROBERTS, Appellant, v. W. L. LOVE et al., Appellees.

No. 5-2072.

Supreme Court of Arkansas.

March 28, 1960.

Rehearing Denied May 2, 1960.

B. Ball, Warren, for appellant.

Philip E. Dixon, Warren, Duval L. Purkins, Lake Village, for appellees.

HARRIS, Chief Justice.

On March 3, 1959, appellant, a practicing attorney of Warren, Arkansas, was notified by a deputy sheriff of Bradley County that Circuit Judge G. B. Colvin, Jr., had requested Roberts to appear at the courthouse. Upon arriving at the courthouse, appellant found that the Circuit Court was in session, and that A. C. Duncan, a Negro, was charged by information with the crime of assault with intent to rape, the charge relating to the alleged attempt to rape a white high school girl. Judge Colvin appointed appellant to defend the Negro. After talking to the defendant in a private consultation room, appellant returned to the courtroom, and observed that a representative of the local newspaper, 'The Eagle Democrat', had obtained permission from the court to take pictures. Appellant objected to the taking of pictures, and the court withdrew its permission. Upon being asked to enter a plea, Roberts moved that the court commit the defendant to the State Hospital for thirty days observation. ¹ Following remarks, hereinafter set out, by the prosecuting attorney and judge, the motion was granted.

On March 5th, in its regular weekly edition, the following story (one column width) relative to the proceedings in the courtroom, appeared in the Eagle Democrat:

'Attacker Sent To Hospital For Observation

'Through a legal technicality, Judge G. B. Colvin, Jr., Tuesday, was forced to send A. C. Duncan, admitted culprit in an attempted rape case here, to the State Hospital for 30 days of observation.

'Duncan's hearing before Judge Colvin was held Tuesday evening, and Paul K. Roberts, Warren attorney, was appointed as the Negro's lawyer.

'When Duncan was asked to make a plea of guilty or not guilty, Attorney Roberts arose and made a motion that he be sent to the State Hospital for observation. Roberts said he thought the Negro might be insane.

'Prosecuting Attorney A. James Linder of Hamburg asked Roberts if he really thought that or if he was 'grasping for straws'. Roberts assured the Court that he felt the Negro might be insane.

'Judge Colvin deliberated about the matter for several minutes before granting Roberts' motion, but he told those present that under the law, he was forced to do it.

'At the start of the hearing, a representative of this newspaper received the permission of Judge Colvin to take candid camera pictures while the hearing was going on. After court started, however, Attorney Roberts raised an objection to the photographer's being allowed to take pictures. No more were taken.

'Duncan admitted to Chief of Police Tommy Dunaway and to the Editor of The Eagle Democrat Wednesday that he raised the window of an East Central Street home here, went in the window, and attempted to attack a high school senior girl. He said he wasn't being forced or coerced into making the statement, but that he was making it of his own free will.'

On September 12th, appellant instituted suit against appellees for libel, alleging that the story was libelous, being partly false, and the true portions 'slanted' to convey the impression that he was insincere in his defense, and had endeavored to defeat justice by trickery; that the publication was maliciously made in an effort to damage appellant's professional standing, and that he had been damaged in his reputation, and had suffered great loss of business by reason of said publication. Compensatory damages were sought in the amount of $250,000, and a like amount was asked for punitive damages.

Appellees demurred to the complaint, and subsequently moved that certain paragraphs of the complaint be stricken for the reason that said paragraphs were irrelevant, redundant, argumentative, and prejudicial. This motion was granted, the demurrer sustained, and the suit dismissed. From such judgment comes this appeal.

Appellant first asserts that the Circuit Judge should have disqualified himself. Ark.Stats.Anno., § 28-604 (1947), provides:

'The judge or juror may be called as a witness by either party, but, in such cases, it is in the discretion of the court to suspend the trial and order it to take place before another judge or jury; and where a party knows, at the time the jury are impaneled, that a juror is to be called by him as a witness, he shall then disclose it, and the juror shall be excluded from the jury.'

We have held that a judge cannot testify for the state in a criminal case pending before him, Rogers v. State, 60 Ark. 76, 29 S.W. 894, 31 L.R.A. 465, but whether a chancellor is disqualified to hear a case in which he is called to testify, is a matter within his discretion. Fidelity & Deposit Co. v. Cunningham, 181 Ark. 954, 28 S.W.2d 715. Dean Ralph C. Barnhart of the University of Arkansas Law School, in an article, 'Theory of Testimonial Competency and Privilege', 4 Ark.Law Review, 377 (1950), discusses the matter of determining whether a judge should disqualify himself in situations where he will be called to testify. At page 389 of the article, it is stated:

'The arguments that counsel will hesitate to make objections to the judge's testimony, or that if counsel does object, it may lead to unseemly conflicts between the judge and the counsel, that testimony by the judge tends to give undue advantage to the party in whose favor he testifies, plus the procedural difficulties of the judge's making the necessary rulings while he is on the stand, are not without weight. These considerations naturally are taken into account by the judge in the exercise of his discretion in continuing to sit or suspending trial and ordering it to take place before another judge after he has testified, and it is to be assumed that a proper exercise of discretion will avoid any real cause for objection.'

In the case before us, such a situation does not actually arise, for here the judge was not called to testify, nor was any jury impaneled; rather, the litigation was disposed of by demurrer, and we find no abuse of discretion in the trial judge passing upon the pleadings.

While we think it immaterial in this litigation, we agree with appellant that the court erred in striking paragraphs 4 A, B, C, D, and E. The article, obviously, cannot be classed as libelous per se. Any alleged libel, therefore, required innuendo denoting the libelous sense in which the words were intended. As stated in 53 C.J.S. Libel and Slander § 162b 2(a), p. 249:

'Where the publication is defamatory on its face, or the meaning of the publication is plain and unambiguous, no innuendo, or explanation of the words published or spoken, is required. If, however, the words are not per se actionable, there must be an innuendo showing, by reference to facts stated in the inducement, the injurious sense imported by the charge. So, where the words used are susceptible of two meanings, one defamatory and the other harmless, plaintiff must by innuendo ascribe to them their defamatory meaning. * * * An innuendo, when necessarily pleaded, forms an essential portion of the statement of a cause of action for defamation which must be considered in determining the legal sufficiency of the complaint.'

We therefore, in reaching our determination of whether the article was libelous, consider each averment in appellant's complaint.

Appellant only alleges one statement in the article to be actually false; i. e., the opening phrase, 'Through a legal technicality * * *.' Appellant alleges as follows:

'A. 'Through a legal technicality Judge G. B. Colvin, Jr., Tuesday was forced to send A. C. Duncan, admitted culprit in an attempted rape case here, to the State Hospital for 30 days for observation,' That the above paragraph was false in that a 30 day observation period for any person accused of crime is a substantive right rather than a legal technicality; that the above paragraph was false and was known to be false when written and said paragraph was designed to leave the impression with all who read said article and did leave the impression with all who read said article that the action on the part of the attorney in moving the court for a 30 day observation period was an unwarranted and improper act of the attorney and that it was not properly a part of the attorney's duty toward his client; that the above quoted paragraph was designed to leave the impression and did leave the impression with all who read same that Judge G. B. Colvin, Jr., was forced to commit the said A. C. Duncan for 30 days observation through chicanery practiced by the attorney and that the court was being forced to do something unusual and out of the ordinary; that the above quoted paragraph was designed to leave the impression that the court was forced to commit the accused to 30 days observation by a technical, legal loophole in which there was no merit whatever, which again was false.'

Appellant states that because of the use of the term 'legal technicality', which he alleges to be false, the complexion of the entire content of the article was changed. Appellant contends that the motion to send Duncan to the State Hospital for observation was a substantive right rather than a legal technicality. Webster's New International Dictionary, 2nd edition, defines the word 'legal' as 'of or pertaining to law; arising out of, or by virtue of, or included in law; based upon or governed by'. Technicality is defined as 'a particular which is technical, or peculiar to any trade, profession, sect, or the like, especially in terminology or method of procedure; as, medical and legal 'technicalities'.' It would therefore appear that a dictionary definition of 'legal technicality' is simply 'legal procedure.' Appellant asserts, however, that the actual meaning of the...