Ross v. State

• Decision Date: 27 November 1939
• Docket Number: Criminal 881
• Citation: 96 P.2d 285,54 Ariz. 396
• Parties: RONALD ROSS, Appellant, v. THE STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

96 P.2d 285

54 Ariz. 396

RONALD ROSS, Appellant, v. THE STATE OF ARIZONA, Respondent

Criminal No. 881

Supreme Court of Arizona

November 27, 1939

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr. Ira L. Childers and Mr. Ross F. Jones, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, Assistant Attorney General, for Respondent.

OPINION

ROSS, C.J.

On December 16, 1938 the defendant was informed against by the County Attorney of Maricopa County for criminal libel. He demurred to the information on the grounds (1) that it "does not state facts sufficient to constitute a criminal charge" and (2) that it "contains matter which constitutes a legal justification or excuse". The demurrer was overruled. Thereafter defendant was tried, found guilty and sentenced to the state prison at Florence for not less than eleven months and twenty-nine days and not more than twelve months.

He has appealed and complains that it was error to overrule his demurrer for the reasons (a) that the information failed "to state how or in what manner or to whom the alleged publication was made, and joined three separate offenses in one count, and is duplicitous"; (b) that the information contains matter showing it was privileged. We quote the information, omitting the formal parts:

"The said Ronald Ross on or about the 2nd day of November, 1938 and before the filing of this information at and in the County of Maricopa, State of Arizona, the said Ronald Ross did then and there wilfully, unlawfully, feloniously and maliciously, with the intent to injure R. T. Jones, J. M Sparks and Elon M. Jones, express a falsehood by writing printing, signing and publishing a certain false, untrue and defamatory statement and matter in writing of and concerning R. T. Jones, J. M. Sparks and Elon M. Jones in words and figures as follows, to-wit:

(The libelous matter, contained in an affidavit, is too long to repeat here but its contents, in substance, are that R. T. Jones, J. M. Sparks and Elon M. Jones, the wife of R. T. Jones, had promised to secure for him and some thirty persons whom he was to engage to assist him in stealing the primary election (to be held on Sept. 13, 1938) for said R. T. Jones, who was a candidate at such election for the office of governor of the State of Arizona, positions with the Social Security Board. The statement or affidavit is shown to have been verified by defendant before a notary public on Nov. 2, 1938.)

"That the said writing, printing and matter above set forth in now and was then and there false and untrue and was then and there maliciously written, printed, signed and published by the said Ronald Ross with the intention on the part of him the said Ronald Ross, to, and which did then and there tend to, bring the said R. T. Jones and J. M. Sparks and Elon M. Jones, referred to in said affidavit as 'Jack Sparks and Mrs. Jones,' respectively, into disrepute, contempt and ridicule, and which then and there tended to and did impeach the honesty, integrity and reputation of the said R. T. Jones, J. M. Sparks and Elon M. Jones, referred to in said affidavit as 'Jack Sparks and Mrs. Jones,' respectively, all of which is contrary to the form, force and effect of the statute in such cases made and provided and against the peace and dignity of the State of Arizona."

The complaint that the information does not "state how or in what manner or to whom" the publication was made is absolutely without foundation. The information shows that the libel was accomplished by means of a written affidavit signed by defendant before a notary public "at and in the County of Maricopa" on November 2, 1938, and that the writing was "then and there" published by defendant. The defendant does no more than call our attention to this supposed defect. He does not cite any authority or give any reason to sustain his criticism.

The information is not duplicitous. It is true the libelous matter is contained in one paper and directed at three persons, but under the law this is but a single libel. 37 C.J. 147, sec. 669; State v. Hoskins, 60 Minn. 168, 62 N.W. 270, 27 L.R.A. 412; State v. Hosmer, 72 Or. 57, 142 P. 581; Bearman v. People, 91 Colo. 486, 16 P.2d 425, 427. In the latter case the court said:

"It is said that the indictment is bad for duplicity in that in one count it charges that Bearman libeled several persons. The objection results from a failure to note the distinction between civil actions and criminal prosecutions for libel. The purpose of the former is to recover damages for injury to the reputation of an individual; whereas the law makes the publication of a libel a crime, not because of injury to the reputation of an individual, but because such publication tends to affect injuriously the peace and good order of society. Where, as in the present instance, the publication is a single act, it constitutes one offense, even though it is a libel on two or more persons, and may be charged in a single count without rendering it had for duplicity. 1 Bishop, New Criminal Procedure, § 437; 37 C.J., p. 147; State v. Hosmer, 72 Or. 57, 142 P. 581; Tracy v. Commonwealth, 87 Ky. 578, 9 S.W. 822; State v. Hoskins, 60 Minn. 168, 62 N.W. 270, 27 L.R.A. 412; State v. Poulson, 141 A. 165, 6 N.J. Misc. 168. And see Crane v. State, 14 Okl.Cr. 30, 166 P. 1110, 19 A.L.R. 1455, concerning informations for libel against a class...."

Defendant also contends his demurrer should have been sustained on the ground of qualified privilege. As a part of this assignment he asserts that the affidavit

"was a part of an amended complaint filed in a court of competent jurisdiction, that the affidavit was made and filed in the judicial proceeding by a party thereto, and affiant acted in good faith and had an interest in the subject matter and was duty bound to disclose the facts contained therein, or honestly acted and believed he had a duty, and therefore is a privileged communication."

This statement shows that, if the published affidavit was privileged, it did not appear on the face of the information. That being true, the privileged character, if it had such character, must be made to appear otherwise than by the demurrer, the latter going only to the facts set forth in the information. There is nothing in the information showing justification or excuse for the publication. If the information showed the publication of...