State v. Brady

• Decision Date: 11 October 1890
• Citation: 24 P. 948,44 Kan. 435
• Parties: THE STATE OF KANSAS v. J. LEEFORD BRADY
• Court: Kansas Supreme Court

24 P. 948

44 Kan. 435

THE STATE OF KANSAS v. J. LEEFORD BRADY

Supreme Court of Kansas

October 11, 1890

Appeal from Morris District Court.

PROSECUTION for libel. December 16, 1889, the defendant Brady was sentenced to pay a fine of $ 10, and the costs of the prosecution. He appeals. The facts appear in the opinion.

Judgment affirmed.

J. G Mohler, for appellant.

J. K Owens, county attorney, for The State; Miller & Ritchie and D. H. Brown, of counsel.

Opinion by GREEN, C.

All the Justices concurring.

OPINION

GREEN, C.:

This case comes here on appeal from the district court of Morris county, where the defendant was prosecuted and convicted of criminal libel, for publishing in the Salina Daily Republican, of which he was the proprietor, at Salina, Kansas, on the 12th day of November, 1889, the following statement:

"'Tis now almost forgotten that Governor Harvey pardoned his own brother out of the penitentiary; the convict Harvey had been sent to Lansing from Salina."

The information charged that the libel was published of and concerning James M. Harvey, John A. Harvey, George E. Harvey, Z. T. Harvey, J. E. Harvey, and W. S. Harvey. The evidence showed that Dr. W. S. Harvey was a resident of Salina at the time of the publication, and a brother of ex-Governor James M. Harvey. The publication was admitted. The claim is made by the defendant that the language published was not libelous per se; that the court below erred in not giving the following instruction to the jury:

"The publication charged as libelous in this case is not libelous per se; and before the jury can find the defendant guilty in this case, express malice must be proven."

This instruction was refused by the trial court, and the following given:

"I instruct you, gentlemen of the jury, that to print and publish concerning any person that he has been a convict in the state penitentiary of the state of Kansas, is libelous per se, unless the same is true; and in this connection, I further instruct you that there is no attempt on the part of the defendant in this case to prove the truth of the matter charged as libelous, or to show that the same was published for justifiable ends."

I. The defendant insists that the above instruction given by the court was erroneous as applied to this case, and greatly prejudiced the substantial rights of the defendant. This is the decisive and controlling question in this case. Ordinarily, the instructions to the jury should be considered together, and a judgment will not be reversed because some one of them fails to state the law applicable to the facts, with sufficient qualifications, provided the defects be cured in other instructions. (Rice v. City of Des Moines, 40 Iowa 638; The State v. Maloy, 44 id. 104.) In the eleventh instruction, which is complained of, the court said to the jury that to print and publish concerning any person that he had been a convict, was libelous per se, unless the same was true. We see no error in this, taken in connection with the instructions as an entirety. Libel has been defined by Judge Story to be any publication, the tendency of which is to degrade and injure another person, or to bring him into contempt, hatred or ridicule, or which accuses him of a crime, punishable by law, or of any act odious and disgraceful in society. (Dexter v. Spear, 4 Mason, 115; Newell, Defam., 37.)

In this case the alleged libel charged that Governor Harvey had pardoned his own brother out of the penitentiary; that the convict Harvey had been sent to Lansing from Salina. This was certainly charging that one of the Harvey brothers had been convicted of a felony, and comes clearly within the definition of libel, as defined by the crimes act:

" A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath, or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends." (Gen. Stat. of 1889, P 2444.)

To call a person a returned convict, or otherwise to falsely impute that he has been tried and convicted of a criminal offense, is actionable. (Newell, Defam., 109; Fowler v. Dowdney, 2 Moody & R. 119; Bell v. Byrne, 13 East, 554.)

We think the trial court committed no error in giving the eleventh instruction.

II. The appellant again contends that the statement published referred to no particular one of the Harvey family as having been a prison convict. While this...