State v. Dedge

• Decision Date: 26 May 1924
• Docket Number: No. 3.,3.
• Citation: 125 A. 316
• Parties: STATE v. DEDGE.
• Court: New Jersey Supreme Court

125 A. 316

STATE

v. DEDGE.

No. 3.

Supreme Court of New Jersey.

May 26, 1924.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Morris County.

Justin W. Dedge was convicted of criminal libel, and he brings error. Affirmed.

Argued February Term, 1924, before GTJMMERE, C. J., and MINTURN and BLACK, JJ.

Riker & Riker and Andrew Van Blarcom, all of Newark, for plaintiff in error.

Wilfred H. Jayne, Jr., Asst. Atty. Gen., for the State.

BLACK, J. The defendant in this case was convicted of criminal libel. The victim of the libel was former Attorney General McCran. It had its inception in a criticism of his official conduct as Attorney General, in the prosecution in Morris county of Frank Jancarek for the murder of Janet Lawrence. The alleged libelous matter was contained in a letter signed by the defendant J. W. Dedge and published on the 12th day of December, 1922, in the Jerseyman, a newspaper published at Morristown, N. J. In the article Attorney General McCran is mentioned three times by name; in two places the state by way of innuendo declares that by use of the words, "the Powers? that be," "these powers," in the letter Attorney General McCran was meant.

The case is brought under review by a writ of error, under which there are thirty-one assignments of error; also under section 136 of the Criminal Procedure Act (1 Comp. St. 1910, p. 1863), under which thirty-five causes for relief or reversal are specified. What Mr. Justice Brown of the SupremeCourt of the United States (Grayson v. Lynch, 163 U. S. 468, 16 Sup. Ct. 1064, 41 L. Ed. 230) is quoted as saying, in the case of New Jersey Zinc Co. v. Lehigh Zinc Co., 59 N. J. Law, 190, 35 Atl. 915, is pertinent in this connection—there is always a possibility that, in the very abundance of alleged errors, a substantial one may be lost sight of. That such may not be so in this case, we proceed to examine seriatim the points argued by the defendant.

The first is, when the state rested its main case, there was no proof whatever of the innuendo that Attorney General McCran was the individual intended, as one of "the Powers? that be," "these powers." A complete and satisfactory answer to this is that, in point of fact, it is not so. The trial judge charged the jury, "You must be satisfied beyond a reasonable doubt, that the defendant referred to Thomas F. McCran in such cases where Mr. McCran's name was not mentioned," etc. On the proofs, this was a question for the jury. What meaning is to be attributed to words alleged to be libelous is to be settled by a jury. State v. Schmitt, 49 N. J. Law, 585, 9 Atl. 774; Benton v. State, 59 N. J. Law, 557, 36 Atl. 104; Merrey v. Guardian Printing, etc., Co., 81 N. J. Law, 632, 80 Atl. 331; 17 R. C. L. p. 407, § 164; 25 Cyc. 587 (111).

It is urged next it was error by the trial Judge in refusing to charge this request, "If you find that the evidence is susceptible to two constructions, one of guilt and the other of innocence, you must adopt the construction favorable to the defendant and acquit him." Without subjecting this request to criticism, it is sufficient to say the trial judge fully and accurately charged the jury upon the presumption of innocence and the rule requiring proof of guilt beyond a reasonable doubt. This was sufficient. The trial judge is not bound to charge the jury in the identical language of a request. Gardner v. State, 55 N. J. Law, 25, 26 Atl 30; McLaughlin v. Damboldt, No. 21 (Court of Errors and Appeals, March term, 1924.) 125 Atl. 314.

The next point argued relates to an exception to the admission of the testimony of Attorney General McCran in rebuttal. This testimony referred somewhat in detail to his actions and what prompted them. This testimony was admitted for the purpose of showing the falsity of the statements contained in the published letter, in so far as they applied to his actions and conduct. No case is cited in support of the defendant's contention. The testimony was clearly competent. It was properly admitted in evidence.

It is next urged, there was error in refusing to charge certain specific requests and in the charge. These refer to malice, reasonable doubt, etc. There is no legal merit in this point. It requires no discussion. The points were fully covered by the charge, so far as it was proper to charge.

It is next urged there was error in the charge, in which it is stated a civil action and a criminal action will both lie for libel. The criticism is without the semblance of merit.

The same may be said of the next point, which refers to what the trial judge said about "the state is tender of the reputation of a public officer," such as in the case of the office of the Attorney General.

It is next urged there was error in the charge in that it took from the jury any consideration of the case, that the communication was privileged. The first part of the charge criticized is taken from the Constitution of the state (1 Comp. St. of N.J. 35, art. 1, § 5); the second part is an excerpt from what this court said in the case of Schwarz Bros. Co. v. Evening News Publishing Co., 84 N. J. Law, 486, 87 Atl. 152. See Benton v. State, 59 N. J. Law, 559, 36 Atl. 1041; Lawless v. Muller (N. J. Sup.) 123 Atl. 104.

So it is urged it was error in permitting a witness, Irving Buchanan, a member of the grand jury at the May term, 1922, of the Morris county courts, to answer a question, whether a certain statement taken from the written charge is true or false. The answer was, "I consider it was not true." We fail to see the force of the objection urged against this question being answered. The Attorney General's conduct was under investigation....