State v. Balch

• Decision Date: 07 February 1884
• Citation: 2 P. 609,31 Kan. 465
• Parties: THE STATE OF KANSAS v. GEORGE BALCH AND R. M. WATSON
• Court: Kansas Supreme Court

2 P. 609

31 Kan. 465

THE STATE OF KANSAS v. GEORGE BALCH AND R. M. WATSON

Supreme Court of Kansas

February 7, 1884

Appeal from Chase District Court.

INFORMATION against George Balch and R. M. Watson, for libel. Trial at the May Term, 1883, when the defendants were found guilty and each was fined $ 10 and adjudged to pay one-half of the costs of the prosecution. They appeal. The opinion states the facts.

Judgment reversed and cause remanded for new trial.

S. N Wood, Madden Bros., and Waters & Ensminger, for appellants.

S. P Young, county attorney, for The State.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was a criminal prosecution against George Balch and R. M. Watson for an alleged criminal libel. The case was tried before the court and a jury; and the defendants were found guilty, and each sentenced to pay a fine of $ 10, and each adjudged to pay one-half of the costs of the suit. The defendants now appeal to this court.

The alleged libel was the circulation, on November 6, 1882, in Chase county, Kansas, of the following printed article, to wit:

"Voters of Chase County: The people of Chase county have not forgotten the mutilation or changing of the election returns one year ago; and is it not time the people should know who the parties were that made the changes? The facts looking in that direction have as yet never been made public, and perhaps never will, but circumstances often show facts that cannot be controverted; and in this case if Mr. Norton was guilty of the said mutilation, was not Mr. Carswell equally so? It is said upon reliable authority that Mr. Norton and Mr. Carswell were together all the evening and the night this deed was committed, in fact slept together in Mr. Norton's room in the court house. If they were together, as is said, is it possible that Mr. Norton would do so dastardly a trick without the knowledge and consent, if not the assistance of Mr. Carswell? Voters, think of this. Also, that it is a well-known fact that this said Carswell worked for and supported, with all his might, Mr. Norton, for the office of sheriff of Chase county. Can you consent to intrust in the hands of a character such as an action of this kind would indicate, the most important office in the county, that of county attorney? GEORGE BALCH."

It appears from the evidence, among other things, as follows:

"That the defendant R. M. Watson was given the manuscript from which the alleged libelous article was 'set up' and printed by one Harris; that the name of George Balch, defendant, was signed thereto; that neither the manuscript nor his signature was in the handwriting of the defendant George Balch; that defendant Watson set up the article alleged to be libelous, printed it, and delivered it, and gave all the printed copies to the said Harris, and was paid for the same as a job printer, which was the only connection he was shown to have had with the alleged libelous article; that the prosecuting witness, C. H. Carswell, was at the time the regular democratic nominee for county attorney, to be voted for at the November election, 1882; that the prosecuting witness, Carswell, did not procure, cause, or know of the changes or alterations made in the election returns as stated in said alleged libel; that the defendant George Balch admitted to the prosecuting witness, Carswell, that he had published said alleged libelous article."

In November, 1881, the time referred to in the alleged libelous article, there were three candidates for sheriff -- William Norton, F. H. Barrington, and the defendant Balch; and the changes referred to were made by taking votes from Balch and Barrington and adding them to Norton. The evidence further shows:

"That prosecuting witness, Carswell, stated to P. J. Norton, in the presence of one C. Berst, that 'they had made too many changes from Balch to Norton; that they should have taken less votes from him [Balch], and more from Barrington; that the greenbackers were watching every vote for their candidates; that Balch, the defendant, was at the time greenback candidate for sheriff, and has been at all times and for years past a legal voter of Chase county, Kansas."

The defendant George Balch did not appear as a witness, and did not testify in the case; and whether the defendant R. M. Watson was a witness or testified in the case, the record does not show.

After all the evidence was introduced in the case, and after the charge of the court was given to the jury, the county attorney proceeded to make an argument in the case, when the following proceedings occurred, as is shown by the record, which proceedings read as follows:

"The opening argument of the plaintiff was made by the county attorney, who in the course of his remarks to the jury said 'That it was in evidence that the libel charged in the information was circulated all over the county, with the name of the defendant George Balch printed thereto; that the defendant Balch knew it was so circulated; that this fact made a prima facie case against him; that the defendant Balch had not offered any testimony denying that he signed and circulated the libel; that he had failed to go on the witness stand (emphasizing and pointing to the witness chair) and deny that he had not signed or circulated that libel.' Here the county attorney was requested to stop by defendant's counsel, who then and there excepted to the remarks of said county attorney; that upon the attention of the court being called to the said remarks, he informed the county attorney that they were improper and could not be made, and stated to the jury that they should not pay any attention to the same; that under the law the defendants, or either of them, had a perfect right to refrain from testifying without having the failure to testify commented on or even alluded to by the state; that the jury would violate their duty if they considered at all the failure of defendant Balch to testify; that thereupon the county attorney turned to the jury and stated to them 'that he had forgotten, and had probably gone beyond what he should have done,' and proceeded in his argument without further allusion to the defendant's (Balch's) failure to testify."

There are several questions involved in this case, and some of them are difficult. The first question that we shall consider is with reference to the statement made by the county attorney to the jury, calling their attention to the fact that the defendant Balch had not testified in the case, and had not denied, as a witness, that he had signed and circulated the alleged libelous article. This statement was in violation of law, and under our own statutes and the decisions of other courts under similar statutes, we think it will require a reversal of the judgment of the court below, and the granting of a new trial. Section 215 of the criminal code provides, among other things, that defendants in criminal cases may testify in their own behalf if they choose to do so; but also provides "that the neglect or refusal of the person on trial to testify . . . shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place." (Laws of 1871, ch. 118, § 1; Comp. Laws of 1879, ch. 82, § 215.)

The decisions above referred to are as follows: Long v. The State, 56 Ind. 182; same case, 26 Am. Rep. 19; Hatch v. The State, 8 Tex. Ct. of App. 416; same case, 34 Am. Rep. 751; Commonwealth v. Scott, 123 Mass. 239; same case, 25 Am. Rep. 87; Austin v. The People, 102 Ill. 261; The People v. Tyler, 36 Cal. 522; The State v. Graham, (decided by the supreme court of Iowa, October 19, 1883,) 17 N.W. 192.

It must be remembered that this statement of the county attorney was not provoked or called forth by anything said by the defendant or his counsel; nor was it said incidentally in some argument addressed to the court; but it was said in an argument addressed to the jury, and in an argument upon the merits of the case...