State v. Osborn

• Decision Date: 08 December 1894
• Parties: THE STATE OF KANSAS v. R. S. OSBORN
• Court: Kansas Supreme Court

38 P. 572

54 Kan. 473

THE STATE OF KANSAS v. R. S. OSBORN

Supreme Court of Kansas

December 8, 1894

Appeal from Shawnee District Court.

AN information was filed in the district court of Shawnee county charging R. S. Osborn with libel, of which the following is a copy:

"In the name and by the authority of the state of Kansas, I, H C. Safford, county attorney in and for the county of Shawnee in the state of Kansas, who prosecute for and on behalf of said state, in the district court of said county, sitting in and for the county of Shawnee, come now here and give the court to understand and be informed, that R. S. Osborn, whose Christian name to affiant is unknown, at the county of Shawnee, in the state of Kansas aforesaid, and within the jurisdiction of this court, on the _______ day of April 1893, he, the said R. S. Osborn, whose Christian name to affiant is unknown, then and there knowingly, unlawfully wickedly and maliciously devising, contriving and intending to injure, scandalize, vilify, prejudice and defame one Cyrus Leland, to provoke him to wrath, to expose him to public hatred and ridicule, and to deprive him of the benefits of public confidence and social intercourse, did then and there unlawfully, knowingly, wickedly and maliciously dictate and compose, and caused to be composed and written, false, scandalous, malicious, defamatory and libelous matters and things, of and concerning the said Cyrus Leland, which said false, scandalous, malicious, defamatory and libelous matters and things of and concerning the said Cyrus Leland are of the tenor following, that is to say:

"'Lyman U. Humphrey, Bill Higgins, Cy. Leland, and others of their gang, are now at the penitentiary and have been for weeks, boarding there, trying to cover up their crookedness, but it can't be covered up. I will just give you a few facts: Cy. Leland has for years been supplying Doniphan county with coal from the state penitentiary mines. This coal was billed to him as slack, at $ 2 or $ 3 a car, just enough to pay for loading it, and he in turn sold it to Doniphan county for first-class coal, and supplied all the county institutions with fuel in this manner. This was first-class coal, but he bought it from the state as slack. This has been going on for years'-- which said false, scandalous, malicious and defamatory libel he, the said R. S. Osborn, afterwards, to wit, on the day and year last aforesaid, knowingly, unlawfully and maliciously caused to be printed in a certain paper, to wit, the Topeka State Journal, a newspaper printed and published in said county of Shawnee, and of a general circulation therein, and did then and there thereby unlawfully, knowingly and maliciously publish and cause to be published the said libel, to the great scandal, infamy and disgrace of him, the said Cyrus Leland, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Kansas. H. C. SAFFORD,

County Attorney.

"STATE OF KANSAS, COUNTY OF SHAWNEE, ss.-- Personally appeared before me, S. M. Gardenhire, clerk of the district court of the third judicial district, in and for the county of Shawnee, in the state of Kansas aforesaid, B. M. Curtis, county attorney, who being by me first duly sworn, saith that the several allegations contained in the foregoing information are, according to the best of his knowledge and information and belief, true in substance and in fact. Signed in my presence, and sworn to before me, this 28th day of June, 1893.

S. M. GARDENHIRE, Clerk.

"By I. S. CURTIS, Deputy."

The defendant moved to quash the information, upon the grounds of duplicity, and that it did not state facts sufficient to constitute an offense against the state, or to charge the defendant with the commission of any offense. The motion to quash was overruled, a plea of not guilty entered, and a trial had before a jury, which resulted in a conviction. A motion for a new trial was made and overruled, and the defendant was adjudged to pay a fine of $ 100 and the costs of prosecution. He appeals.

In our opinion, the motion to quash the information should have been sustained, for the following reasons, to wit: First, the information is not verified. What purports to be the verification is no verification whatever. It is not the affidavit of Curtis, for he did not sign it. It is not the affidavit of Safford, for he did not appear before the clerk. This we claim from the face of the record itself, and is what the record shows. We may conjecture what the real facts were in the case, but we are bound by the record, and we suppose the state is equally bound thereby. The motion to quash raised the sufficiency of the verification the same as any other portion of the information. The law requires all informations to be verified, and unless this is properly done it is as fatal a defect as any other. That objection was not waived in this case by going into a trial without attacking it. The motion to quash raised the sufficiency of this portion of the information at the first opportunity the defendant had.

The information is defective on account of its uncertainty. The defendant is entitled to know the exact charge that is preferred against him. In the words of the statute, "The language of the information must be direct and certain as it regards the party and offense charged." Gen. Stat. of 1889, P 5169. See, also, The State v. Brooks, 33 Kan. 713.

There is no colloquium or innuendo in the information. There is no statement to show that Leland was ever a resident of Doniphan county, was ever a dealer in coal there, or, in fact, was ever in that county, or had any dealings of any kind there. Nor is there a statement that he was a dealer in coal at any place. In criminal cases, all the presumptions are in favor of the defendant and in consonance with his innocence.

Insert the name of Harrison or Cleveland in the article as published and claimed as libelous in the information where the name of Leland occurs, and is there a court in the country that would sustain the information for libel as to such party? We think not. The name of Cyrus Leland, the party alleged to have been libeled, does not appear in the article anywhere. The name Cy. Leland does appear, but they are not the same -- are not idem sonans. Nor can this court say they are the same in law. There is no innuendo connecting the two. In this connection and to show the necessity and use of both a colloquium and an innuendo, we refer the court to --

Odger, Lib. & Sl., p. 118, et seq., and authorities there cited. See, also, Hess v. Sparks, 44 Kan. 469; The State v. Mayberry, 33 id. 441; The State v. Brooks, 33 id. 713; The State v. Henderson, 1 Rich. 179; The State v. White, 6 Ired. 418; Henicke v. Griffith, 29 Kan. 516.

The information does not follow the language of the statute (Gen. Stat., of 1889, P 2445), nor does it contain similar words. If held good at all, it must be held good under the third subdivision of the section, viz., "for knowingly and willfully aiding and assisting" in making and publishing. Yet the information, we claim, is fatally defective in omitting the word "willfully" and using instead thereof the words "wickedly and maliciously." Each of these words has a well-defined legal meaning, and in this connection must be construed according to its peculiar and legal meaning. As to the difference between the meaning of the two terms, we refer to 60 Me. 410; 74 Mo. 214. "Willfully" means intentionally, not accidentally. The State v. Dowd, 39 Kan. 412.

There is no better-established legal proposition than that, where one is sought to be punished for libel, the pleader must not only set out in hoec verba, but must also profess to set out the exact words of the libel, and any variation between the allegation of the information and the proof will be fatal. See 38 Ill.App. 613; 6 Rich. 387.

The theory of the trial court -- and the only theory upon which a conviction can be maintained in this case -- is, that the defendant can be legally held responsible in a criminal action for the willful repetition by another of a slanderous statement. An unbroken chain of authorities holds that, in a civil case for slander, the person first uttering the slanderous words is not held responsible for the damages resulting from the willful repetition of the same by one who heard them originally uttered, whether the name of the original slanderer be given or not. The person repeating the slander or libel is alone responsible for the damages resulting from its voluntary repetition. See 126 Mass. 329; 31 N.E. 656; 154 Mass. 238; 18 N.H. 115; 16 N.E. 553.

In the case of The State v. Clay, 86 Ill. 147, the court has gone to the fullest extent of the law. In that case Clay made some statements to a reporter derogatory to the character of two ladies. The reporter prepared an article giving the facts as detailed by Clay. Before it was published, the article was submitted to Clay, and he was asked whether it was correct. He replied, "It is pretty rough, but let her go." The court, in that case, very properly held him responsible for the libel. But that is not this case. Osborn never saw the article till after it appeared in the Journal. The only act done by Osborn in this case, as claimed by the state, is the one of rehearsing to the reporter a statement, which statement the reporter afterward, of his own volition, put into writing and had published in the Journal. It is also claimed that Osborn knew he was talking to a reporter, and that what he said would likely be published. This, we claim is not aiding or assisting in the publication, nor is it assisting in the making of the libel, within the meaning of those terms as used in the statute. Whom did he assist? See Cochran v....