State v. Haider

• Decision Date: 14 April 1967
• Parties: STATE of North Dakota, Respondent, v. Johnnie HAIDER, Defendant and Appellant. Crim. 351.
• Court: North Dakota Supreme Court

Page 71

150 N.W.2d 71

STATE of North Dakota, Respondent, v. Johnnie HAIDER, Defendant and Appellant.

Crim. 351.

Supreme Court of North Dakota.

April 14, 1967.

Syllabus by the Court

1. Trial de novo is not available to a defendant on an appeal from a judgment in a criminal action.

2. An appeal from a judgment only brings to this court for review errors of law committed by the trial court and appearing in the record of the action which have been preserved and presented in the manner prescribed by statute.

3. A criminal libel is a malicious defamation of a person made public by any printing, writing, sign, picture, representation, or effigy tending to expose such person to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse. § 12--28--01, N.D.C.C.

4. Nothing in § 12--28--01, N.D.C.C., prohibits the receipt in evidence of testimony explaining the circumstances surrounding the publication of a writing alleged to be libelous.

5. In North Dakota there is no common law in any case in which the law is declared by the Code. § 1--01--06, N.D.C.C.

6. In the instant case it was not error for the trial court to permit testimony going to the proof of the libelous nature of the words 'two dance jobs' or 'two dance dates' written on the canceled check.

7. In evaluating the publication of an alleged libel the court will place itself in the situation of the reader to whom it is addressed and then determine the sense or meaning of the document according to its natural and popular construction.

8. To constitute libel it is not necessary that a publication shall impute to a person the commission of a crime.

9. A communication made to a person entitled to or interested in the communication by one who also was entitled to or interested or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent, is not presumed to be malicious and is a privileged communication. § 12--28--11, N.D.C.C.

10. The evidence submitted in the instant case was not sufficient to bring the defendant within the privilege contained in § 12--28--11, N.D.C.C.

11. A publication having the tendency or effect mentioned in § 12--28--01 is deemed malicious if no justification or excuse therefor is shown. § 12--28--02, N.D.C.C.

Wheeler & Daner, Bismarck, for appellant.

Helgi Johanneson, Atty. Gen., Bismarck, Albert A. Wolf, State's Atty., Bismarck and, on oral argument, Larry A. Kraft, Asst. State's Atty., for Dale H. Jensen, State's Atty., for Burleigh County, Bismarck, for respondent.

ERICKSTAD, Judge.

By criminal complaint dated May 17, 1966, the defendant, Johnnie Haider, was charged with having committed on or about April 15, 1966, at Bismarck in Burleigh County the crime of libel. The complaint specifically alleged:

That the said defendant did then and there wilfully and unlawfully and maliciously defame one Leo Braun by making public and parting with the immediate custody to be read by others, a writing, to wit: a cancelled check which had been altered after deposit by the said Leo Braun, which alteration tended to show a serious violation of Musicians' Union rules, causing ridicule and expense to the said Leo Braun, and depriving him of the benefits of public confidence and social intercourse.

To this charge the defendant entered a plea of not guilty. The defendant having waived a jury, the county court with increased jurisdiction found Mr. Haider guilty. Judgment upon conviction was imposed upon him on August 15, 1966. It is from that judgment that he appeals and demands a trial de novo in this court.

Trial de novo is not available to a defendant on an appeal from a judgment in a criminal action. State v. Timm, 146 N.W.2d 552 (N.D.1966).

* * * An appeal from a judgment only, brings to this court for review errors of law committed by the trial court and appearing in the record of the action which have been preserved and presented in the manner prescribed by statute.

State v. McClelland, 72 N.D. 665, 10 N.W.2d 798, 801.

Our view of this appeal is that Mr. Haider asserts that the trial court erred in receiving in evidence facts surrounding the publication of a certain canceled check which made libelous a publication that otherwise would not have been libelous. In other words, it is Mr. Haider's contention that a publication of a writing must be libelous per se to support a charge of criminal libel.

As the insufficiency of the evidence to support the verdict (in this case the findings of the trial court) is not in issue, we may assume, for the purpose of deciding the legal issue before us, that the evidence establishes that the complaining witness, Leo Braun, a member of Local 229 of the American Federation of Musicians (hereafter referred to as the union) had been given a check for $20 by Mr. Haider, a person not a member of the union, for one dance job, but that after it had cleared the bank and had been returned to Mr. Haider, Mr. Haider had written on its face the words 'two dance jobs' or 'two dance dates'; that this check, with the aforesaid inscription, was shown to some of the officers and members of the union following a meeting of the council of clubs within the city of Bismarck; that to these officers and members this inscription indicated that Mr. Braun had committed four violations of the union rules in that he had been employed twice for less than the minimum union wage scale and had been employed twice by a non-member of the union, whereas in truth the only offense he had committed was that of having been employed by a non-member of the union, inasmuch as he had been employed only once and the $20 payment exceeded the minimum wage scale for one job; that Mr. Haider had written this misleading information on the check and had presented it to an officer of the Moose Lodge so that the officer could prove that members of the union were violating their rules, with the intention that this would result in the council of clubs establishing a rule that the clubs would employ non-members of the union as well as union members at their functions; and that after this check so inscribed was seen by officers and members of the union, Mr. Braun was tried by the officers of the union, was found to have been guilty of four violations of union rules, and was fined $75, resulting in loss of favor with the union and loss of future employment.

The practical question presented then is whether the trial court erred in considering any evidence which went to explain the significance of the words 'two dance jobs' or 'two dance dates.'

Our statute on criminal libel reads as follows:

12--28--01. 'Criminal libel' defined.--A libel is a malicious defamation of a person made public by any printing, writing, sign, picture, representation, or effigy tending to expose such person to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious 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 and friends.

North Dakota Century Code.

There is obviously nothing in the statute on criminal libel which prohibits the receipt in evidence of testimony explaining the circumstances surrounding the publication of the writing.

In his brief on appeal Mr. Haider asserts that there appears to be very little distinction between a civil libel and a criminal libel, but that it must be borne in mind that not every libel for which a civil action lies will support a criminal prosecution.

The following is part of his argument:

The test seems to be that, in all cases where a party in order to maintain a civil action must show special damages to recover, no indictment can be sustained, because, as it is said in such cases, a suit for damages offers an adequate remedy.

In support of this contention he refers us to Wharton's Criminal Law, as follows:

* * * Whatever, if made the subject of civil action, would be considered libelous without laying special damage, is indictable in a criminal court, and by this test, therefore, the law of libel, as expressed on actions for damages, is brought to bear on criminal prosecutions. There are cases, however, in which an action would not lie without laying special damage, in which, nevertheless, an indictment is good. Thus, for instance, if a man write or print, and publish of another, that he is a scoundrel, or villain, it is a libel, and punishable as such; although in such cases a civil suit might not lie without special damage. (Emphasis added.)

2 Wharton, Criminal Law § 1934 (12th ed. 1932).

In support of that part of Wharton which we have italicized, the following cases are cited: Merchants' Insurance Company of Newark, N.J. v. Buckner, 39 C.C.A. 19, 98 F. 222; State v. Norton, 89 Me. 290, 36 A. 394; State v. Smily, 37 Ohio St. 30, 41 Am.Rep. 487.

It is apparently Mr. Haider's contention that the rule he would have us follow is supported by and based on the common law of England. It should be noted that in this state there is no common law in any case in which the law is declared by the Code. See § 1--01--06, N.D.C.C. We find no present day advocate of Mr. Haider's rule and see no reason why we should follow it; we therefore reject it.

Accepting the first part of his premise, that there is little distinction between civil and criminal libel (notwithstanding the distinction noted in McCurdy v. Hughes, 63 N.D. 435, 248 N.W. 512, 518, 87 A.L.R. 683, which is not pertinent to this case), we note what one of the students of the common law of England had to say regarding the meaning of words:

Words may be:--

(1) obviously defamatory;

(2) ambiguous: that is, words which, though Prima facie defamatory, are still on the face of them susceptible of an innocent meaning;

(3) neutral; i.e., words which are meaningless till some explanation is given;...