State v. Haffer

• Decision Date: 29 December 1916
• Docket Number: 13613.
• Citation: 162 P. 45,94 Wash. 136
• Parties: STATE v. HAFFER.
• Court: Washington Supreme Court

162 P. 45

94 Wash. 136

STATE v. HAFFER.

No. 13613.

Supreme Court of Washington

December 29, 1916

Department 2. Appeal from Superior Court, Pierce County; E. M. Card Judge.

Paul R Haffer was convicted of libel, and he appeals. Affirmed.

P. L. Pendleton and C.J. Criswell, both of Tacoma for appellant.

F. G Remann, J. W. Selden, and Albert E. Joab, all of Tacoma, for the State.

PARKER J.

The defendant, Haffer, was charged by information filed in the superior court for Pierce county with the offense of libel, in that on the 18th day of February, 1916, he maliciously composed and published in a designated newspaper of general circulation in Pierce county an article tending to expose the memory of George Washington to hatred, contempt, and obloquy. The trial of the defendant had before the superior court sitting with a jury resulted in a verdict of guilty. Judgment and sentence were accordingly rendered against him by the superior court, from which he has appealed to this court.

The offense charged against appellant and of which he was adjudged guilty is defined in our Criminal Code of 1909 as follows: 'Every malicious publication by writing, printing, picture, effigy, sign or otherwise than by mere speech, which shall tend: (1) * * * (2) To expose the memory of one deceased to hatred, contempt, ridicule or obloquy; or (3) * * * shall be a libel. Every person who publishes a libel shall be guilty of a gross misdemeanor.' Laws of 1909, p. 940; Rem. & Bal. Code, § 2424.

It is conceded that the person concerning whom the alleged libelous article was composed and published is the George Washington who was the most prominent figure in our Revolutionary history, the first President of the United States, and who died in the year 1799. No contention is here made touching the libelous character of the article in question in so far as its language is concerned. We therefore give no consideration to the language of the article. Nor are the merits of the case before us in so far as the fact of the article being maliciously composed and published by appellant is concerned. That question was determined against him by the verdict of the jury, and no question is here raised as to the correctness of that determination. Indeed, that question could not be raised upon this record, because the evidence is not before us so as to enable us to review it even if counsel were so insisting.

The principal contention of counsel for appellant, as we understand them, is that the information does not charge facts constituting the offense of libel, in that no language published concerning a person who has been dead for a period reaching back to a time prior to the birth of any person living at the time of the publication is in law libelous and punishable as such; and that the courts must take judicial notice of the fact that Washington died before any person now living was born. We shall assume for the purpose of argument, as we proceed, that Washington's death occurred before any person now living was born. We shall also assume for the purpose of argument that there is not now living in this state any relatives or posterity of Washington who could be injured or incited to breaches of the peace by the publication here involved. In support of counsel's contention upon this branch of the case, they invoke the common-law conception of libel tending to defame the dead, and the limitation which it is claimed that law prescribed touching the intent of the publisher of the libelous language, and the period within which a deceased person can be libeled following his death so as to render the publisher of the libelous words subject to criminal prosecution. Let us first notice the libel of the common law, and the reasons thereof for its limitations here invoked touching the question of intent of the publisher and the presumption that only relatives and friends of the deceased could be injured or incited to breaches of the peace by such publications. We shall then be better able to understand whether or not there is in our new statutory definition of the offense, in so far as it relates to the defamation of the memory of deceased persons, a legislative intent to broaden the common-law doctrine and do away with the limitations thereof here invoked by counsel for appellant.

In 3 Wharton's Criminal Law (11th Ed.) §§ 1920 and 1921, we read:

'Writings vilifying the character of persons deceased are libels, and may be made the subject of an indictment; but the indictment in such a case must charge the libel to have been published with a design to bring contempt on the family of the deceased, or to stir up the hatred of the people against them, or to excite them to a breach of the peace, otherwise it cannot be sustained.

'But there should be a limit as to time. The Roman law here offers some salutary restrictions for our guidance. * * * A time arises when the interests of just historical criticism demand that the liberty of speech should be unrestrained; and when even of the most illustrious of the dead, censures the most injurious must be permitted without penal amenability. The modern Roman law declares that this time arrives when the generation living at the death of the person libeled has passed away. * * *'

The learned author here, after defining the offense at common law showing that in so far as the criminal intent is concerned it must be an intent to 'bring contempt on the family of the deceased, or to stir up the hatred of the people against them, or to excite them to a breach of the peace,' seems to draw the conclusion that at common law there could be no prosecution for such a libel if it was published after the generation living at the time of the death of the deceased had passed away, apparently upon the theory that the time had then arrived when no living person could be injured by the libelous publication, and hence when there could be no person to bring contempt upon, or to stir up hatred against, or to excite to a breach of the peace. It is interesting to note that this conclusion of the learned author seems to be rested rather more upon the civil than upon the common law. In Newell on Slander and Libel (2d Ed.) p. 965, that learned author says:

'It is a misdemeanor at common law, punishable on indictment with fine and imprisonment, to write and publish defamatory matter of any person deceased, provided it be published with the malevolent purpose to injure his family and posterity, and to expose them to contempt and disgrace; for the chief reason of punishing offenses of this nature is their tendency to a breach of the peace. And although the party be dead at the time of publishing the libel, yet it stirs up others of the same family, blood, or society to revenge and to break the peace. The malicious intention of the defendant to injure the family and posterity of deceased must be expressly averred and clearly proved.'

In the leading case of The King v. Topham, 4 Durnford & East's Reports, 126, Lord Kenyon, having under consideration an alleged libelous publication reflecting on the memory of the late Earl Cowper, said:

'Now to say, in general, that the conduct of a dead person can at no time be canvassed; to hold that, even after ages are passed, the conduct of bad men cannot be contrasted with the good--would be to exclude the most useful part of history. And therefore it must be allowed that such publications may be made fairly and honestly. But let this be done whenever it may, whether soon or late after the death of the party, if it be done with a malevolent purpose, to vilify the memory of the deceased, and with a view to injure his posterity, as in R. v. Critchley, then it comes within the rule stated by Hawkins; then it is done with a design to break the peace; and then it becomes illegal. But on that question the jury ought to have had the power to deliberate. * * *'

Prior to the enactment of our Criminal Code of 1909 defining libel of this character in the language above quoted from section 2424, Rem. & Bal. Code, our statute defined such 'libel' as follows:

'A libel is the defamation of a person made public by any words, printing, writing, sign, picture, representation, or effigy tending to; * * * or any 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 or friends. * * *' Laws of 1891, p. 119; Rem. & Bal. Code, § 2777.

Here we have in substance the common-law definition of such libel. That is, the publication was required to be one designed to 'blacken and vilify the memory of one who is dead,' and also one 'tending to scandalize or provoke his surviving relatives or friends'; from which it might well have been argued, as is done by counsel for appellant, that there could be no surviving relatives or friends to be injured by the publication of libelous language concerning the deceased when such period had elapsed after the death of the deceased that there would be no surviving relatives or friends of the deceased. Now, this former statutory definition of libel of this character, which as we have seen was, in substance, the common-law definition, was the law existing and presumably known to the Legislature when it passed the Criminal Code of 1909 containing this new definition of the offense in the language of section 2424 above quoted; which new definition eliminates all reference to the effect of the publication upon relatives or friends of the deceased or any other designated class of persons as an element of the defined offense; and which declares in unqualified terms such language maliciously published tending 'to expose the memory of one deceased to hatred, contempt, ridicule or obloquy' to be libel. It seems to ...