State v. Herman

• Decision Date: 08 October 1935
• Citation: 219 Wis. 267,262 N.W. 718
• Parties: STATE v. HERMAN.
• Court: Wisconsin Supreme Court

219 Wis. 267

262 N.W. 718

STATE

v.HERMAN.

Supreme Court of Wisconsin.

Oct. 8, 1935.

This action comes to the Supreme Court from the Circuit Court for Racine County on exceptions reduced to writing in a summary mode and allowed and signed by E. B. Belden, Circuit Judge, under section 358.07, Stats.

Samuel Herman was convicted of criminal libel, and he took exceptions to rulings of the court.--[By Editorial Staff.]

Exceptions overruled and record remanded.

The defendant was convicted by a jury in the circuit court for Racine county on January 29, 1935, upon an information charging him with criminal libel under section 348.41(1), Stats. The information is as follows:

“I, John R. Brown, district attorney for Racine County, State of Wisconsin, do hereby inform the court that on the 14th day of December, A. D., 1934, at the city and county of Racine, Wisconsin, said defendant, Samuel Herman, did then and there unlawfully and maliciously make, publish and declare of and concerning the Chief of Police of the City of Racine, State of Wisconsin, Grover C. Lutter, the following false, defamatory, libelous words and language, to-wit:

‘I openly charge that Chief of Police Lutter had knowledge of and was one of the leading organizers of this attack by underworld elements who kidnapped me on State Street yesterday before noon. In spite of his statements that he is working on the kidnapping, he made no effort to interview me or get in touch with me, nor has he apprehended a single one of the gangsters who took part in a whole series of violent acts, breaking of headquarters on State Street and Sixth Street, throwing bricks at halls, which culminated in the kidnapping of myself and a clubbing and beating. If anything happens to me he will be the guilty one.

This has as its aim to stop the unemployed from struggling for better conditions. This is the Merry Christmas that Lutter has prepared for the unemployed. A Merry Christmas of Terror. The struggle will go on as such fascist terror has never yet in history succeeded in stopping courageous fighters and their movement from carrying on.

Signed Samuel Herman

Secretary Comm. of Action.'

and did thereby expose him, the said Chief of Police of the City of Racine, State of Wisconsin, Grover C. Lutter, to hatred, contempt and ridicule, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Wisconsin.”

The defendant presents two assignments of error. The alleged error is found in exceptions No. 1 and 2. No. 1 is that “the court erred in denying the defendant's motion for an order for inspection of the transcript of the John Doe proceeding.” No. 2 is that “the court erred in sustaining the state's objection to the defendant's offer of proof,”which offer of proof will be hereinafter referred to.

The record shows that prior to the trial of this action and on January 25, 1935, defendant's counsel made the following motions to the trial court, to wit:

“1. That the trial of this action be continued until after the conclusion of the trial of the said Nick Bins.

2. That John Brown, district attorney of said county, and G. E. Smalley, Court Commissioner of said county, be required to permit affiant and any other interested persons, citizens of this State, to make an efficient study of the transcript of the testimony thus far heard at the John Doe proceeding referred to hereinbefore.

3. That affiant and all other persons, citizens of this State, be permitted freely to attend any further hearings held before any Court Commissioner of this county and that this Court direct its order specifically to the aforesaid G. E. Smalley to such effect.

4. That the Court appoint a special prosecutor in place of the district attorney for the prosecution of the action entitled, The State of Wisconsin v. Nick Bins, now pending before G. E. Smalley, a Commissioner of this Court.”

The respective motions were brought on for hearing by order to show cause directed to the district attorney for Racine county on the afternoon of January 25, 1935. The several motions were denied and defendant's counsel took the following exceptions:

“(a) Denying his motion for a continuance of the trial of this action until after the termination of the action of the State of Wisconsin v. Nick Bins.

(b) Denying his motion for an order directing the district attorney to permit his attorney and himself to inspect the district attorney's transcript of the testimony taken at a so-called John Doe hearing on a complaint charging John Doe as an accessory before the fact to an assault upon him, this defendant, Samuel Herman.”

The record shows that on or about January 9, 1935, one Nick Bins was arrested on a complaint charging him with assault on Hermann (defendant) on December 13, 1934, referred to in Herman's allegedly libelous language. It is claimed that Bins made an extrajudicial confession implicating Chief of Police Lutter as an accessory before the fact to the assault. On the basis of this extrajudicial confession, a so-called John Doe proceeding was commenced before Court Commissioner G. E. Smalley upon a complaint charging John Doe as an accessory before the fact to the assault on Herman (defendant) on December 13. This John Doe proceeding was commenced on January 12, 1935, and continued from day to day. During the progress thereof, Herman's counsel was refused admittance and was refused an opportunity to inspect a transcript of the testimony taken.

At the trial defendant made certain offers of proof claiming the evidence offered was admissible as evidence of the truth of the libel charged, also that the evidence offered was admissible to rebut the presumption of malice. The evidence offered to prove the truth is the defendant's testimony as to alleged statements made to him by his assailants during the attack on him to the effect that Lutter was one of the organizers of the attack. Defendant's counsel concedes that the offered testimony was incompetent as hearsay unless rendered competent by preliminary proof establishing a prima facie case of conspiracy against Mr. Lutter. The proof offered by the defense to establish a conspiracy on the part of Mr. Lutter may be summarized as follows:

“(1) That on November 24, 1934, at the relief station in Racine uniformed police officers stood idly by while an assault was made upon one Steve Zengota and an assault and battery on Herman (defendant) as members of an organization known to the police and known as WERA Workers' and Unemployed Workers' Committee of Action.

(2) That on the afternoon of November 24, three persons, two of whom will be named, acting in concert solicited the cooperation of others and of others than the persons who will be called in a plan for unlawfully and illegally wrecking the headquarters of the Communist Party, to commit criminal and malicious destruction of property, and that on the evening of that day the project was consummated.

(3) That on November 27, 1934, the WERA Workers' and Unemployed Workers' Committee of Action, having procured lawful written permission of the Board of Education to hold a meeting in one of the public school buildings in Racine, and the building having been opened for their convenience and they being in possession under a valid and unrevoked permit, they were forcibly ejected by Chief of Police Lutter acting personally and in violation of law he expelled those persons therefrom.

(4) That persons belonging to the same organization referred to (WERA Workers' and Unemployed Workers' Committee of Action) having held a perfectly orderly meeting at Sokol Hall were trailed many blocks by persons in automobiles evidently following them.

(5) That on December 8th the League Against War and Fascism having arranged to hold a meeting,--the Communist Party of America, I mean,--having procured a lease for Winter's Hall that evening and made arrangements for a state wide meeting, the lease was rescinded by the landlord under circumstances indicating the solicitation of the Chief of Police.

(6) That on the night of December 10th and 11th a brick was thrown through a plate glass window of the building housing the headquarters of this organization, the WERA Workers' Committee of Action.

(7) On December 13th, the defendant was assaulted and abducted, kidnapped in short.

(8) That on the evening of the same day the Committee of Action meeting at Sokol Hall was broken up by unknown persons while the meeting was in progress and upon pursuit being made police officers were encountered under unusual circumstances justifying the inference that they were there to cover the flight of the persons throwing the stones through the windows during the meeting.

(9) That on December 20th (1934) a brick was thrown through the plate glass window of the place of business of one of the men who provided bail for the defendant in this action (Herman).”

These several offers of testimony were made in the absence of the jury and in ruling upon the admissibility of such offered testimony the court said:

“Of course the court should accord to the defendant all legitimate latitude. Recognizing the rule that ordinarily conspiracy must be proved by circumstantial evidence, I think that the testimony referred to in the offer of counsel for the defendant is too remote and too conjectural to afford a legitimate basis for a proper inference by the jury of existence of the alleged conspiracy and, therefore, the objection is sustained.”

Thereupon the defendant moved that the same evidence be received upon the ground that it tended to prove a reasonable basis for the defendant's belief in the truth of the alleged libelous statement attributed to him and therefore tended to rebut the presumption of malice, to which the state objected upon the ground that evidence is not admissible for such purpose in a criminal action for libel, and the court, after hearing arguments of counsel, ruled as follows:

“I think it is...