State v. Grinstead

• Decision Date: 09 March 1901
• Docket Number: 11,904. [*]
• Citation: 64 P. 49,62 Kan. 593
• Parties: THE STATE OF KANSAS v. POOL GRINSTEAD
• Court: Kansas Supreme Court

64 P. 49

62 Kan. 593

THE STATE OF KANSAS v. POOL GRINSTEAD

No. 11,904. ^[*]

Supreme Court of Kansas

March 9, 1901

Decided January, 1901.

Appeal from court of appeals, northern department; JOHN H. MAHAN ABIJAH WELLS, and SAM'L W. MCELROY, judges.

Judgment of district court reversed and court of appeals affirmed.

A. A Godard, attorney-general, and S. M. Brewster, county attorney, for The State.

Harvey & Harvey, and Albert H. Horton, for appellant.

DOSTER C. J. DOSTER, SMITH, JOHNSTON, CUNNINGHAM, GREENE and POLLOCK, JJ., dissenting.

OPINION

DOSTER, C. J.:

This is an appeal from a judgment of conviction of libel. The judgment was reversed by the court of appeals upon the following grounds: (1) Error in overruling an application for a change of venue; (2) insufficiency of the information to charge a public offense; (3) erroneous instructions to the jury. Upon petition of the state, a certification of the case to this court was ordered.

The motion for the change of venue was verified by the appellant's oath and supported by his oral testimony. Summarized, the motion and testimony were to the following effect: Appellant was the publisher of a newspaper, republican in politics. In 1898, preceding the nomination of a republican candidate for judge of the twenty-second judicial district, appellant had favored Hon. R. M. Emery and opposed Hon. W. I. Stuart as the nominee for that office. The latter received the nomination, but appellant claimed that it was secured by dishonorable political practices, and through the efforts of one Cyrus Leland, whom he alleged to be a tyrannical and unscrupulous "political boss," in disfavor with the better elements of the party, and that the nomination, being thus brought about, was in opposition to the real desires of a majority of the voters of the party. Appellant, notwithstanding his dislike for Stuart and the methods and influences by which his nomination was procured, agreed to support his candidacy in consideration of forty dollars, in money, to be paid by Stuart, and in further consideration of a promise of the latter's influence to secure him a share of the county printing; and also engaged to and did act as an intermediary between him and the editors of some other papers in arranging terms for their support similar to those which he had made for himself. These latter undertakings appellant complied with, but Stuart broke faith with him in the matter of the county printing and the payment of the money, whereupon he refused further to support his candidacy and commenced and did thereafter violently oppose him through his newspaper.

Many of the editorials published by appellant in opposition to Stuart's candidacy were of the most vituperative and libelous character. In them the candidate was accused of "bribery, perjury, drunkenness, gambling, libertarianism, and various other forms of human debauchery." Stuart, however, was elected, but the appellant continued the publication of the libelous articles concerning him, speaking of him in some of them as "judge anarchist," and in various ways impugning his character and qualifications as a judicial officer.

At the legislative session of 1899 the state senate, in a contest proceeding instituted by James Falloon, Stuart's unsuccessful opponent at the preceding election, found that Stuart had secured his election through a violation of the provisions of chapter 77, Laws of 1893 (Gen. Stat. 1897, ch. 56; Gen. Stat. 1899, §§ 2666--2680), "An act to prohibit the corrupt use of money and corrupt practices at elections," whereupon that body declared the office of judge of the twenty-second judicial district to be vacant and ordered and directed Stuart to vacate the office. In the case of Falloon v. Clark, 61 Kan. 121, 58 P. 990, the making of this finding and order was held to be beyond the constitutional jurisdiction of the state senate, and in consequence Judge Stuart retained possession of the office. Upon the hearing of the proceeding in the senate, appellant appeared as a witness against Judge Stuart, and testified to violations by him of the "corrupt-practices act," such as offering and paying money and making promises of political influence for political support. As a consequence of appellant's violent opposition to Judge Stuart's election and the publication of the aforementioned newspaper articles against him and the testimony given against him on the proceeding in the state senate, the judge became greatly prejudiced against the appellant and refused to speak to him when meeting him upon the street or elsewhere, wherefore the application for change of venue was made.

Let it be understood that the above is the appellant's recital of facts. It is not made as a statement of the proved occurrences, except as to the publication of the newspaper articles. Upon the trial of the application for change of venue, Judge Stuart filed a written but unverified statement, in which he disclaimed all feeling of prejudice against the appellant. He denied that he had agreed to pay appellant for his support in the political campaign, either by promises of money or influence to secure the public printing; denied that he had authorized him to negotiate for the support of other newspapers by promises of money or otherwise, and denied generally that he was guilty of any of the corrupt practices charged against him by appellant during the campaign. He said that he had read some of the appellant's newspaper articles, but had not read all of them; that those he had read excited in him no feelings of prejudice or animosity; that he attributed their publication to feelings engendered by the heat of the political campaign, and therefore did not attach any importance to them. He denied that he had refused to speak to appellant when spoken to by him. He admitted, however, that he had not spoken to him, but said that he supposed that appellant had no desire, considering the incidents of the previous campaign, to communicate with or speak to him. Three or four persons filed affidavits in resistance of the application for a change of venue, stating in general terms that they were acquainted with Judge Stuart and had never heard him speak or manifest ill will or prejudice toward appellant, and, from their knowledge of the character and disposition of the judge, that they believed he had no prejudice against appellant and could give him a fair and impartial trial. The above, including the judge's written statement, was all the evidence on the application for change of venue.

In the view of the majority of the court no error was committed in overruling the application. The showing of reasons for the change of venue was no stronger than was made in City of Emporia v. Volmer, 12 Kan. 622. In that case the opinion recites the following facts:

"Volmer filed his affidavit in the district court for a change of venue on account of the prejudice of the judge, setting out that the judge, some two years before, had, in his presence, speaking of him and to him, remarked that he was meaner than a horse-thief, a murderer, or a rebel, that he had no shame, if he had he (the judge) would make his face burn; and that there had since that time been no reconciliation between them. Whereupon the judge filed a counter-affidavit, stating, in substance, that he did not recollect the remarks, thought he did not make them, but if he did, it was while a partner of the city attorney and engaged in the trial of a prosecution against said Volmer for violating a city ordinance; that he had no prejudice against defendant; that they had been in the habit of meeting and speaking together in a friendly manner, and, until the reading of defendant's affidavit, he was unaware that any other than friendly relations existed between them. Upon this the defendant asked time to file counter-affidavits, but the court refused to grant any, and overruled the application for a change of venue. Was there error in this ruling? It must be confessed that it is somewhat novel for a judge to file his own affidavit, to be used on a motion before himself, but the novelty or irregularity, if irregularity it be, of such proceeding, does not warrant us in a reversal, if outside and independent of it the substantial rights of the defendant have not been prejudiced."

In that case it was ruled that the personal knowledge of the judge as to the existence of bias or prejudice in his mind against the defendant, and his statement of it upon the consideration of the application for the change of venue, could not be ignored, and it was therefore held that a reviewing court must consider the judge's statement in passing upon the sufficiency of the evidence in support of the application. After a full consideration of the question, it was ruled by the court, as expressed in the syllabus of the case:

"In criminal cases, on an application for a change of venue on account of the prejudice of the judge, such facts and circumstances must be shown by affidavits or other evidence as clearly establish such prejudice; and unless it be by such testimony clearly established, a reviewing court will sustain an overruling of the application, on the ground that the judge must have been personally conscious of the falsity or non-existence of the grounds alleged."

A similar ruling was subsequently made in the case of The State v. Bohan, 19 Kan. 28. The facts of the two cases to which we have thus adverted are indeed stronger in support of the contention made by the defendants in those cases than are the facts in support of the appellant's contention in this case, because in them the evidence in support of the application consisted of expressions of dislike and ill will toward the defendants, made by the judge. In this case the...