Smith v. Commonwealth

• Decision Date: 14 December 1895
• Citation: 98 Ky. 437,33 S.W. 419
• Parties: SMITH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

33 S.W. 419

98 Ky. 437

SMITH v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 14, 1895

Appeal from criminal court, Jefferson county.

"To be officially reported."

George W. Smith was convicted of libel, and appeals. Affirmed.

H. F Wilson, for appellant.

Fairleigh & Straus, Aaron Kohn, and W. K. Hendrick, for the Commonwealth.

HAZELRIGG J.

The appellant was convicted of libel, and his punishment fixed at a fine of $877.50. The grounds of his complaint here are (1) that the term "malice" was not used in instructing the jury; (2) that the jury ought to have been told that, if they had a reasonable doubt as to the truthfulness of the publication, the verdict should have been for the defendant and (3) that the verdict of the jury was arrived at by lot.

In support of his first complaint, the case of Stewart v Hall, 83 Ky. 380, is cited, where it was said that "the essence of libel is malice." But it was further said in that case: "If the language is actionable, then the publication is presumed to have been malicious, unless the occasion rendered it prima facie privileged. If so, then the legal effect of privilege is to rebut the legal inference of malice arising from the words and the burden of proving malice in fact or express malice is then upon the plaintiff; and this is not shown by the mere falsity of the publication, in the absence of evidence that the publisher knew it to be false." Here the instruction is that if the jury believe from the evidence, to the exclusion of a reasonable doubt, that the accused did unlawfully publish in his newspaper, of and concerning Ben Johnson, certain libelous and defamatory matter (setting it out in full), wherein said Johnson was presented to the public as a felon, a violator of the law, and as being a degraded and unworthy man and official, and was held up to ridicule and contempt, and "that each and every word of said articles, and their legitimate inference to be drawn from the language used by the defendant in the same, is false and libelous, and was so known to be false and libelous, and was so known to be false and libelous when published by the defendant, and were written and published by him solely and for the purpose of bringing the said Johnson into great contempt, scandal, infamy, and disgrace, and to bring the administration of his office of collector of internal revenue for the 5th district of Kentucky into disrepute, to the great scandal and reproach of the administration of his office, and for the purpose of injuring, scandalizing, and villifying the name, credit, and...