Simmons v. Holster

• Decision Date: 01 January 1868
• Parties: WILLIAM H. SIMMONS v. HERMAN HOLSTER and others.
• Court: Minnesota Supreme Court

Page 232

13 Minn. 232

WILLIAM H. SIMMONS v. HERMAN HOLSTER and others.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Scott county, denying a new trial.

The action was for libel. Two libels are set out in the complaint. The first it alleges to have been published in the newspaper called the Saint Paul Press, in the following words and figures:

"Stolen, on Sunday night, fourteenth instant, from the subscriber, at Belle Plaine, a horse, mare, and colt. The horse is a roan, three years old, feet, head, and mane are black. The mare is also roan, 11 years old, with white stripe on forehead, commencing large and running out small to nose. The right hind foot is marked by being stepped on. The thief is believed to be one William H. Simmons, who delivered the horses to some other parties. A liberal reward will be paid for information leading to the recovery of this property.

                                                    "S. V. HANFT
                                                     "HERMAN HOLSTER."
                

The second is alleged to have been published in a newspaper called the Minnesota Statesman. It is in substance like the first, though slightly different in phraseology.

The answer contained a general denial, and alleged the theft of the horses; that before the publications the plaintiff was believed and suspected by his neighbors and others to have stolen the same, and prior to the date of the publications he was under arrest, charged with stealing the horses. Also, that on the application of Holster, Hanft, without intent to charge plaintiff with stealing, but solely for the purpose of facilitating efforts made for the recovery of the property, and only as the amanuensis of Holster, wrote advertisements similar to those in the complaint, with Holster's name thereto, and that Hanft put his name to them as a person to whom information might be given. The reply denied the allegations of the answer, except those relating to his arrest and the writing of the advertisements.

Plaintiff had a verdict.

Henry Hinds, for appellants, cited:

Chatfield & Irwin, for respondent, cited:

McMILLAN, J.

This is an action for the recovery of damages for an alleged libel. The publication charged as libelous is clearly actionable in itself. It charges distinctly an indictable offence. McCarty v. Barrett, 12 Minn. 496, (Gil. 398.) It is not disputed that the plaintiff is the person intended in the publication. The statement that "the thief is believed to be one William H. Simmons, who delivered the horses to some other parties," is an imputation of the crime to the plaintiff as effectual as if made in positive language. The charge need not be couched in positive terms. A positive averment is only made because the party believes the truth of it. Miller v. Miller, 8 Johns. 74; Geshame v. Ives, 2 Wend. 536; Beehler v. Steever, 2 Wh. (Pa.) 313; 1 Hill. Torts, c. 8, § 21, p. 292; Dottarer v. Bushey, 16 Pa. 204; 1 Am. Lead. Cas. (4th Ed.) 135. When the libelous words are actionable in themselves, the malicious intent in publishing them is an inference of law. But if the circumstances of the publishing were such as to repel that inference, and exclude any liability of the defendants, unless upon proof of actual malice, the plaintiff must furnish that proof. 2 Greenl. Ev. § 418. The question of malice was, therefore, for the jury, and there being testimony pro and con upon the subject, we see no reason to disturb the finding upon this ground. Upon the trial of the cause the plaintiff called as a witness in chief S. V. Hanft, one of the defendants. The witness, by his counsel, before being sworn, objected to being compelled to give evidence against himself. The court overruled the objection and the defendant excepted.

The witness having been duly sworn, a writing, which had been previously identified as the manuscript received by the publisher of the St. Paul Press, and from which the publication in that paper had been made, was shown to the witness, and thereupon he was asked "Did you write this paper?" Thereupon the witness, defendant, objected to being compelled to answer the question, because the evidence to be given in answer to the question would tend to convict him of a criminal offence. The objection was overruled by the court, and such ruling excepted to by this defendant, and the witness, being required to answer, testified as follows: "I wrote that paper, and the writing subjoined thereto. I wrote a similar one, intended for the Minnesota Statesman. I did not send that paper to the St. Paul Press, nor the other one to the Minnesota Statesman." The objection, taken by the defendant at the time of calling the witness to be sworn, was not well founded, for the defendant was a competent witness under our law, and so long as no improper question was asked, could not object to testifying.

But the question asked the witness referred to the manuscript from which this libel was published, and which was already in evidence in the cause. A libel is an indictable offence; the direct tendency, therefore, of the question, was to criminate the witness. When it reasonably appears that the answer will have a tendency to expose the witness to a penal liability, or to any kind of punishment, or to a criminal charge, "the authorities," says Greenleaf, "are exceedingly clear that the witness is not bound to answer," and he may claim the protection at any stage of the inquiry, whether he has already answered the question in part, or not at all. If the fact to which he is interrogated form but one link in the chain of testimony which is to convict him, he is protected. And whether it may tend to criminate or expose the witness is a point upon which the court is bound to instruct him. 1 Greenl. Ev. § 451, and authorities cited in note. In view of the facts existing at the time of the trial, therefore, the witness should not have been compelled to answer the question. Whether the testimony of Hanft in regard to the matter voluntarily given when called by defendant cures the error, we need not, perhaps, stop to examine, as in the view we take of the case a new trial must be granted on other grounds; and this question is one peculiar to this trial, and will not, in all probability, arise again.

The "plaintiff offered in evidence three copies of the St. Paul Daily Press," bearing dates respectively nineteenth, twentieth, and twenty-first days of August, 1864, and each containing the advertisement set up in the complaint as a libel, and also three copies of the Minnesota Statesman, also containing said advertisement, "to which the defendants objected that there was no proof of publication. The objection was overruled, and the advertisements were read in evidence.

The copies of the St. Paul Press offered in evidence were properly received. The witness Driscoll, who states that he was one of the publishers of that paper, testifies that each of the papers offered is a copy of the St. Paul Press, published on the day of its date. That the daily circulation of the paper then was 2,500, and from 30 to 40 in Scott county. He identifies the manuscript produced as the one from which the advertisement claimed to be libelous was published, and states that it was inserted in the whole edition of that paper, on each of the days on which the paper was purported to be published. To prove the publication of a newspaper it is not necessary to produce a copy which has been actually published, but upon the production of a copy not actually published the witness may swear that papers of the same kind were published. 1 Phil. Ev. 553; 2 Stark. Slander, 49; 1 Hill. Torts, c. 15, § 60, p. 463; McLaughlin v. Russell, 17 Ohio, 475; Huff v. Bennett, 4...