State v. Colby

Citation126 A. 510
PartiesSTATE v. COLBY.
Decision Date07 October 1924
CourtUnited States State Supreme Court of Vermont

Exceptions from Orange County Court; Sherman R. Moulton, Judge.

George T. Colby was convicted of criminal libel, and he excepts. Exceptions overruled.

Argued before WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ.

Frank C. Archibald, Atty. Gen., and m. C. Taft, State's Atty., of Chelsea, for the State.

Earle R. Davis and John W. Gordon, both of Barre, for respondent.

POWERS, J. The respondent was convicted of criminal libel under an information charging him with having published a circular addressed to the voters of Orange county, advocating the election of E. W. Kent as assistant judge of the county court, and Dr. Angell as senator; in which circular, speaking of another candidate for assistant judge, the following language was used:

"If you want to know more, come to Williamtown and ask any one who was present at the Gale auction, and if our state's attorney had done his duty, and had not been hired to do otherwise, the candidate for side judge would have been behind the bars long ago."

It was upon this charge of bribery made against the state's attorney that a conviction was sought and obtained. It was shortly before the primary election in 1920 that this circular appeared in various towns in Orange county. John C. Sherburne was then state's attorney of that county, and was a candidate for the nomination for county senator.

Various objections to the sufficiency of the information, both in form and substance, are urged upon our attention, but they are not properly before us. The respondent did not move to quash, demur, or move in arrest. He pleaded not guilty, and challenged the information only by objections to evidence and by a motion for a verdict. But, having joined issue on the facts alleged against him, any pertinent evidence was admissible, State v. Louanis, 79 Vt. 463, 65 A. 532, 9 Ann. Cas. 194, and the sufficiency of an information cannot be tested by a motion for a verdict. State v. Rosenberg, 88 Vt. 223, 92 A. 145; State v. Perkins, 88 Vt. 121, 92 A. 1; Berkley v. Burlington Cadillac Co., 97 Vt. 260, 122 A. 665.

It appeared from the testimony of the respondent himself that the circular in question was prepared for the purpose of being distributed among the voters of Orange county; that he received the original manuscript of it from an unknown source, and took it to a printer to have it printed; that he afterwards received the printed copies from the printer, and, in response to a telephone message received from an unknown party, he left them in a certain place to be called for by a person unknown; that still later, he received an undisclosed number by mail, and distributed them, but only to persons who were voters in Orange county, and only to persons who asked for them. The court charged the jury that the act of the respondent in leaving the circulars in the place as stated was a publication within the meaning of the law. To this instruction the respondent excepted. The instruction was too plainly correct to require extended discussion. All that the respondent did in connection with the circulars was in aid and furtherance of a definite plan, which had for its object the placing of the libelous statement in the hands of the voters, as the respondent well knew. This plan was carried out, and its object attained. In these circumstances, each act of the respondent, the delivery of the manuscript to the printer, and the leaving of the printed copies in the place agreed upon, was a participation in the publication of the libel, and made him civilly and criminally liable therefor. Klos v. Zahorik, 113 Iowa, 161, 84 N. W. 1046, 53 L. R. A. 235; Miller v. Butler, 6 Cush. (Mass.) 71, 52 Am. Dec. 768; Finnish Temperance Society v. Raivaaja Pub. Co., 219 Mass. 28, 106 N. E. 561, Ann. Cas. 1916D, 1087; Grinnell v. Cable-Nelson Piano Co., 169 Mich. 183, 135 N. W. 92.

Moreover, if there had been error in this instruction, it would have been harmless; for, as we have seen, the respondent admitted that he gave out some of the circulars to voters who asked for them. No question is or could be made as to the sufficiency of this as a publication.

This brings us to the important question in the ease. The court charged the jury to the effect that there was no question of privilege involved, and that it was no defense that the false charge was published in good faith for the information of voters and in an honest belief of its truth. By exception to this instruction and otherwise the respondent challenges the soundness of the proposition therein contained. In his brief, he presents an interesting and instructive discussion of the origin and scope of the modern doctrine of free speech as guaranteed by American constitutional provisions, both state and federal. He argues that the record discloses a case of qualified privilege, excluding the implication of malice that usually arises in libels, and requiring the state to establish it as an essential fact, and that an honest and reasonable belief in the truth of the statement published is a full protection from this prosecution. Many cases from courts of high standing support this contention; but the great weight of authority and the "true spirit of reason, justice and sound policy" are against it.

It is upon the broad ground of public advantage that the law recognizes as privileged certain communications and publications. Hence it is, as said by Taft, J., in Post Publishing Co. v. Hallam, 59 F. 530, 8 C. C. A. 201, "the existence and extent of privilege in communications are determined by balancing the needs and good of society against the right of an individual to enjoy a good reputation when he has done nothing which ought to injure it. The privilege should always cease where the sacrifice of the individual right becomes so great that the public good to be derived from it is outweighed."

So the question before us is to be determined by the effect of the result upon the welfare of society at large. All the learned agree that, when a man presents himself as a candidate for public office, he submits for the consideration and discussion of the voters, not only his ability, but his character, so far as it affects his qualifications therefor. He puts in issue, so to speak, before the electorate, not alone his capacity to administer the office sought, but his moral fitness therefor as well. But this rule is not without its limitations. The right to assail a candidate for office is not unlimited. As was said by this court in Shurtleff v. Stevens, 51 Vt. at page 519, 31 Am. Rep. 698:

"It is not the law, that, because a man fills a station before the public eye, he becomes thereby a target at which all the artillery of ridicule, ill will, or malice, may be leveled. He may be assailed when duty or interest demands it, and then, only under the rules of fair,...

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