State v. Butler

• Decision Date: 03 November 1909
• Citation: 65 S.E. 993,151 N.C. 672
• Parties: STATE v. BUTLER et al.
• Court: North Carolina Supreme Court

65 S.E. 993

151 N.C. 672

STATE v. BUTLER et al.

Supreme Court of North Carolina

November 3, 1909

Appeal from Superior Court, Guilford County; Long, Judge.

Marion Butler and another were convicted of libel, and appeal. Reversed, and new trial granted.

On a prosecution for a publication charging A. with being corruptly influenced in his judgments, while chief judge of the Choctaw court, and accusing him of receiving, with the other members of that court, part of a fee of $750,000 allowed by such court to attorneys in a certain suit, the opinion delivered in a suit in another court to enjoin payment of such fee by the Secretary of the Treasury, and giving reasons for denying the injunction, is not competent evidence.

This was an indictment for libel. The bill of indictment charged in proper form, the defendants with a publication, on April 23, 1908, in a newspaper called the Caucasian, published in Raleigh, N. C., of a false, scandalous, and libelous article set forth in the bill, concerning and about Spencer B. Adams charging the said Adams with being corruptly influenced in his judgments, while chief judge of the Choctaw and Chickasaw citizenship court, created by act of the Congress of the United States, for the purpose of determining the status of certain Indians, as members of the Choctaw and Chickasaw tribes of Indians. Upon the plea of not guilty, entered by each of the defendants, they were tried, found guilty by the jury, judgment pronounced, and the defendants appealed to this court.

Aycock & Winston, W. S. O'B. Robinson, and Justice & Broadhurst for appellants.

Attorney General Bickett, Stedman & Cooke, J. A. Long, R. C. Strudwick, and G. S. Bradshaw, for the State.

MANNING J.

Having reached the conclusion that on the two questions herein considered the learned trial judge committed error prejudicial to the defendants, entitling them to a new trial, we do not deem it necessary to pass upon the other questions presented upon the record and argued before us with ability and learning. These questions may not be presented upon another trial. At the trial the learned judge permitted the state, over defendants' objection, to offer certain admissions of their attorneys at the preliminary hearing of the warrant issued by the justice of the peace. It appears, from all the witnesses examined about this matter, that on the day set for this preliminary hearing the prosecution asked for a continuance, to enable it to secure from the office of the Secretary of State certain statements made, as required by section 1152, Revisal 1905, by the Caucasian Publishing Company; that these statements were material, as "the state expected to prove by said documents the connection of the defendants with the Caucasian newspaper, and the publication by them therein of the alleged libel." The attorneys of the defendants (they being present), in order to secure a hearing without delay and prevent a continuance, admitted that "the defendant L. F. Butler was managing the editorial department of the Caucasian, and the defendant Marion Butler was connected therewith at the time of the publication." At the trial in the superior court, upon indictment found, the state offered in evidence, prior to the offer of these admissions, the statements made by the Caucasian Publishing Company, for the absence of which it had moved for a continuance at the preliminary hearing. It is manifest from this that the state was not misled, by the admission before the justices of the peace, into an omission to have these statements at the trial in the superior court. We do not think these admissions, made under the circumstances and for the purpose stated, ought to have been received. In Weeks on Attorneys at Law, § 223, p. 393, the author says: "In criminal cases admissions are not admissible, unless made at the trial by the defendant or his counsel." As sustaining this doctrine, the learned author cites Rey v. Thornhill, Car. & P. 575. That was indictment for perjury, tried before Lord Abinger. The report of the case states: "The case came on to be tried as a traverse on the crown side of the assizes, and before trial it had been agreed between the attorneys on both sides that the formal proofs on the part of the prosecution should be dispensed with, and that that part of the case for the prosecution should be admitted. Lord Abinger, C. B. In a criminal case tried in the crown side of the assizes I cannot allow any admission to be made on the part of the defendant, unless it is made at the trial by the defendant or his counsel. C. Phillips, for the prisoner, declined making any admission, and, the formal proof not being complete, Lord Abinger, C. B., directed an acquittal."

In Weisbrod v. Chicago & N.W. Ry. Co., 20 Wis. 421, the court, in speaking of admissions by an attorney at a former trial, said: "Such admissions are frequently made for the purpose of saving time, where counsel are confident of success upon some other points; and, when so made, they are always understood to have reference to the trial then pending, and not as stipulations which shall bind at any future trial. Such was...