State v. Levand

• Decision Date: 19 December 1927
• Docket Number: 1389
• Citation: 262 P. 24,37 Wyo. 372
• Parties: STATE v. LEVAND, ET AL. [*]
• Court: Wyoming Supreme Court

262 P. 24

37 Wyo. 372

STATE v. LEVAND, ET AL. ^[*]

No. 1389

Supreme Court of Wyoming

December 19, 1927

Rehearing Denied January 31, 1928, Reported at: 37 Wyo. 372 at 387.

APPEAL from District Court, Goshen County; WILLIAM A. RINER, Judge.

Max M Levand and another were convicted of criminal libel, and they appeal.

Affirmed.

W. H Patten, J. M. Roushar, Paul F. Ivey and John T. Bottom, for appellants.

The alleged libelous article was published in Natrona County; the information charges that defendants were "late of" the County of Converse; defendants could not be informed against or lawfully tried elsewhere than in Natrona County, U.S. v. Smith, 173 F. 227; Const. Art. I, Sec. 10; Houston v. Pub. Co., 155 S.W. 1068; Pub. Co. v. Huddleston (Ala.) 92 So. 193; State v. Moore (La.) 72 So. 965; Davidson v. Co., 178 S.W. 68; U.S. v. Pub. Co., 219 U.S. 1. The Court erred in requiring defendants to go to trial upon the amended information; the prosecuting attorney of Goshen County was without authority to verify or file the amended petition, notwithstanding Sec. 1451 C. S. since the change was from another district court and from one county to another. It cannot be presumed that he was appointed, as in State v. Kusel, 29 Wyo. 287. Judge Brown designated the prosecuting attorney of Converse County to try the case and appointed two Goshen County attorneys to assist him. Judge Brown was without authority to make these appointments; it was an abuse of discretion to refuse a trial in June 1925; there was no showing of cause by the State for continuance. State v. Keefe, 17 Wyo. 227; Newlin v. People, 221 Ill. 166; Cummins v. People, 4 Colo.App. 71; State v. Kuhn 154 Ind. 450; in re McMicken, 39 Kans. 406; Section 3475 C. S. provides that no amendment shall operate to cause delay, unless for good cause. The amendments merely inserted innuendoes amounting to inferences and not statements of facts, Talbot v. Mack, 169 P. 29; Cooper v. Romney, 141 P. 289; Krone v. Black, 129 S.W. 43; McCauley v. State, 141 S.W. 975. The innuendoes could not extend or enlarge the effect of the words declared on, Cooley on Torts (3rd ed.) p. 414; nor cure defects in the original information, U.S. v. Smith, 173 F. 227; 16 C. J. 485. Defendants were entitled to a preliminary examination, Latimer v. State, 55 Neb. 609. The evidence was insufficient to sustain the verdict, Newell Slander and Libel, p. 916. The reputation of the complainants was not injured by the publication.

W. O. Wilson, Atty. Gen. and J. A. Greenwood, Deputy Atty. Gen., for respondent; David J. Howell, former Atty. Gen. and John C. Pickett, former Assistant Atty. Gen., on the briefs.

The published article set forth the names of the jurors who acquitted Cantlin; they were charged with corruption by the Ku Klux Klan; a special mailing list was used in circulating the paper containing it; defendants were found guilty and fined; an offense was charged under Sec. 7088 C. S. The question of jurisdiction is governed by the common law rule permitting prosecution in the county of the defendants' residence, or in any county where the libelous matter was published, Odgers Libel and Slander, 157-158; State v. Piver (Wash.) 132 P. 858; State v. Huston (S. D.) 104 N.W. 451. The article was circulated in Converse County where the prosecution was brought, Alsup v. State (Tex.) 238 S.W. 667; Const. Art. I, Sec. 10; the word "publish" means to make public, 37 C. J. 141; Words and Phrases, Vol. 6, p. 5847; State v. Shaffner, 44 A. 620; Haas v. State, 20 A. 751; Street v. Johnson, 50 N.W. 395. No objection was made to special prosecutors at the trial; the continuance was not an abuse of discretion; the Goshen County prosecutor had authority to sign the amended information, State v. Kusel, 29 Wyo. 289; information was filed within thirty days preceding the term and no preliminary examination was necessary, Sec. 7431 C. S.; moreover the offense charged was a misdemeanor, State v. Nicholson, 24 Wyo. 347; State v. Tobin, 31 Wyo. 355; defendants were not deprived of constitutional rights, Sec. 7544 C. S.; State v. Keefe, 17 Wyo. 227. The point cannot be first raised on appeal, re Begerow, 65 P. 828; Head v. State, 131 P. 937. The article was submitted to the jury upon a proper instruction, re McDonald, 4 Wyo. 150; the continuance was upon the court's own motion and no demand for trial was made at the time; costs were properly taxed, Nicholson v. State, supra; Sec. 7331 C. S.

W. H. Patten, J. M. Roushar, Paul F. Ivey and John T. Bottom, in reply.

No offense was committed in Converse County, Polzin v. Co., 250 Ill. 661; in re Gainsway, 123 N.Y.S. 966. The paper was published at Casper in Natrona County and put in circulation there; Brian v. Harper, 80 So. 885; State v. Bass, 54 A. 1113. There was but one publication and that was in Natrona County where defendants resided.

BLUME, Chief Justice. POTTER, J., and KIMBALL, J., concur.

OPINION

BLUME, Chief Justice.

The defendants were editor and manager respectively of the Casper Herald, a daily newspaper printed, issued and published at the times herein mentioned at Casper, Wyoming, with a circulation in Converse County, Wyoming, some copies of the paper being sent to one Welsh, an agent who sold them in the town of Douglas. During the month of October, 1923, one Cantlin was tried in the District Court of Converse County for the murder of Nellie E. Newcomb, charged to have been committed in Casper. On the 11th day of that month, the jury which had been selected to try that cause returned a verdict of not guilty. Thereafter, but on the same day, the following article appeared in the Casper Herald above mentioned, namely:

"CANTLIN FREED BY JURY WYOMING'S SHAME

Erroll J. Cantlin has been granted legal permission by a jury of Douglas citizens, (God save the Word) to shoot and kill women autoists who fail to put on their dimmers while he is driving on the same road. The acquittal of this self confessed slayer marks a victory for the Invisible Empire in Wyoming. The slimy hand of the Ku Klux Klan, stained with the blood of hundreds of innocent men and women, showered its hold in the right place.

"Twelve good men and true! have set aside the laws of the civilized world in order to free a man whose hands are red with the blood of a defenseless victim. With such support and encouragement Cantlin should wind up with an enviable record as a gunman. No longer will he have to accept the wages of an undersheriff. The way is open for him to go on the stage and clean up thousands. A man that can hit an automobile twice at point blank range with bullets fired from a pistol aimed in another direction is indeed an object of curiosity. His name should live forever in the Hall of Fame. There should be a great demand for his memoirs. We suggest that he write a book and call it "The Wonders of Moonshine, or Women I Have Killed." With the riches that will pour in from the receipts at the vaudeville houses and the sale of the book we hope Cantlin will not forget the men who helped place the stamp of authenticity on his weird tale. They should at least be entitled to one-half of what he earns. But then again maybe they won't need it. The Ku Klux Klan it is said, pays those who serve them with a generous hand. And transposing some of Attorney Hemmingway's words, spoken yesterday, 'we don't see how any attorney could be so vile as to protect such a client.' Again we repeat, 'twelve good men and true.' True to the principles of that doctored brand of Americanism taught by the Ku Klux Klan. They served their Kleagle well. And they undoubtedly will be handsomely rewarded. An innocent woman lies dead in her grave. Slain for no cause at all. And a jury of 12 Douglas citizens declare it was Cantlin's duty to kill her. If you drive a car, be careful. The 'crime' of failing to turn on your dimmers is punishable by DEATH. Warn your wife and sisters. Human life is something to be taken at will by an undersheriff. 'Twelve good men and true' have so declared at Douglas. Here are their names, men. Look them over. These are the men who said after hearing the evidence that Cantlin was justified in killing Mrs. Nellie B. Newcomb who now rests unavenged in her grave.

Chester Sims

Lloyd Groggert

Charles Patterson

E. R. Rouse

George Peake

William Gerlock

H. B. Harton

James Pexton

Macky Jackson

Floyd Roush

F. F. Call

Jack Kerwin"

On October 31, 1923, an information was filed in Converse County, charging the above named defendants with criminal libel, based upon the article appearing in the newspaper as above mentioned, and under section 7088, W. C. S. 1920, which reads as follows:

"Whoever makes, composes, dictates, prints or writes a libel to be published; or procures the same to be done; and whoever publishes or knowingly aids in publishing or communicating a libel, is guilty of libel, and shall be fined not more than one thousand dollars, to which may be added imprisonment in the county jail for not more than three months."

On May 7, 1924, the defendants appeared and filed a motion to change the place of trial from Converse County. On the same day the motion was granted and the cause was transferred to Goshen County, Wyoming, for trial, and the court also on the same day made and entered an order appointing Reid & More of Torrington, Wyoming, to assist the County Attorney of Goshen County in the prosecution of the cause. On May 8, 1924, the defendants filed a motion for a change of judge. This motion too, was sustained and the cause was referred to the Hon. William A. Riner. Nothing further appears to have been done in the cause, aside from the transfer thereof, until June 18, 1925, when a motion was filed by the County Attorney of Goshen County, and other attorneys in the...