Savannah News-Press, Inc. v. Harley
| Decision Date | 24 September 1959 |
| Docket Number | No. 2,INC,NEWS-PRES,No. 37840,37840,2 |
| Parties | SAVANNAHv. J. R. HARLEY |
| Court | Georgia Court of Appeals |
Stephens & Gignilliat, Thomas H. Gignilliat, Savannah, for plaintiff in error.
J. Walter Cowart, James E. Lucas, T. Delano Maurice, Savannah, for defendant in error.
Syllabus Opinion by the Court
1. (a) A libel is a false defamation of another (Code, § 105-701) and if what is printed is true there is no libel. Code, § 105-708. While truth, like privilege, in libel cases is usually a matter for special plea, if the petition shows on its face that the printed matter is either true or privileged a general demurrer to the petition will lie for the reason that the petition on its face sets out no cause of action. Atlanta News Pub. Co. v. Medlock, 123 Ga. 714, 721, 51 S.E. 756, 3 /, 1139; Atlanta Journal Co. v. Doyal, 82 Ga.App. 321, 328, 60 S.E.2d 802. Such a demurrer will lie where the petition shows on its face that the printed matter relied on to constitute the libel is true, because libel in order to be actionable must be shown to be false. Where the petition affirmatively shows that it is not false, but on the other hand shows it to be true, then such petition fails to state a cause of action for libel, the falsity of the printed matter being an essential element to such a cause of action.
(b) A demurrer admits all well pleaded allegations of a petition but does not admit conclusions of the pleader unsupported by facts authorizing such a conclusion. Lee v. City of Atlanta, 197 Ga. 518, 520, 29 S.E.2d 774; Robertson v. Panlos, 208 Ga. 116, 118, 65 S.E.2d 400. Accordingly, the allegations of this petition such as those characterizing the publication as libelous and libelous per se are mere conclusions not supported by the pleaded facts. Likewise, the allegations of the petition that the plaintiff 'has not been and is not guilty of the offense charged or intended to be charged by said letter and article,' and that 'the same are untrue, unfair and without foundation in fact' are conclusions of the pleader not supported by the pleaded facts and are not admitted on demurrer.
2. There are in Georgia no crimes except those made so by statute. Since to constitute the crime of burglary under Code, § 26-2401, there must be a breaking and entering of the 'dwelling, mansion, or storehouse, or other place of business of another' there can be no burglary of a motor vehicle parked on a public street. Likewise, insofar as criminal offenses are concerned, the crime of trespass as defined in Code, § 26-3001 would not apply to such motor vehicle, since it is intrinsically a crime relating to land and things attached thereto, although, in the civil sense, the word 'trespasser' may mean any tortfeasor. Georgia Power Co v. Blum, 80 Ga.App. 618(1), 57 S.E.2d 18. Accordingly, where the allegations of the plaintiff, a police officer on active patrol duty with the Savannah Police Department, are to the effect that he and his partner 'espied what they construed to be a burglary in progress, occurring in the cab of a large tractor-truck parked at Bay and Montgomery Streets in Savannah' and that they hastened 'to apprehend the trespassers, whereupon the offenders quit the truck cab and began to run and make their escape,' such allegations without more, fail to show that the persons so apprehended had committed the crime of either burglary or trespass. From the facts stated, the suspects might well have been attempting to commit the crime of larceny of an automobile (Code, § 26-2603), a felony the attempt to commit which would be a misdemeanor (Code, § 27-2507, subd. 5), or might have been attempting or actually engaged in the crime of breaking and entering an automobile with the intent to commit a larceny or felony (Code, § 26-2637), also a felony, the attempt to commit which would be a misdemeanor. Since the petition fails to allege either that there was a breaking of the cab or the tractor-trailer by the suspects or that there was any intent to commit a larceny, it affirmatively appears from the allegations of the petition that the suspects, if they were engaged in any crime at all, were guilty at the time they were apprehended, of no crime beyond the grade of misdemeanor.
3. The petition further alleges that as they approached the spot the offenders quit the truck cab and began to run and make their escape; that the plaintiff's command to halt was ignored and he then fired his revolver at one of the fleeing suspects to prevent his escape; that he was some distance from the fleeing figure and shot at his legs; that the bullet hit the suspect in the side above the hip and he then discovered he had shot a teen-aged (13 year old) Negro boy, thinking him to be a small man. The plaintiff had no warrant but, being a police officer, he had the right to arrest without a warrant for an offense committed in his presence, or where the offender was endeavoring to escape, or where, for other cause, there would likely be a failure of justice for want of an officer to issue a warrant. Code, § 27-207. In such circumstances his right to arrest exists regardless of whether the offense being committed is a misdemeanor or a felony. Graham v. State, 143 Ga. 440, 443, 85 S.E. 328. And he apparently has the right to arrest under certain circumstances in order to prevent a felony from being committed, which felony has not yet been attempted. Cobb v. Bailey, 35 Ga.App. 302, 305, 133 S.E. 42. But where a felony has not been committed, and the only crime, if any at all, is no more than a misdemeanor, he has no right, merely to prevent an escape, to shoot a misdemeanor suspect who is fleeing from him. Croom v. State, 85 Ga. 718(2), 725, 11 S.E. 1035; King v. State, 91 Ga.App. 825, 828, 87 S.E.2d 434. See also McAllister v. State, 7 Ga.App. 541(5), 67 S.E. 221 where it was held: 'The court did not err in charging that an officer has no right to follow up one whom he seeks to arrest and attempt to shoot or kill him, if the person sought to be arrested is making no effort to resist arrest, but is only attempting to avoid it by flight.' And whether or not he would have had the right to shoot at a suspect to prevent the commission of a felony, if such shooting became necessary in order to accomplish the arrest, he would have no right where the suspect, by his flight, unmistakably showed that he had abandoned any present intention of stealing the motor vehicle or its contents, and the shot was fired to prevent the escape rather than to prevent the felony. What is said here of course applies to cases where no felony in fact has been committed. This petition fails to...
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