State v. Sefrit

• Decision Date: 12 December 1914
• Docket Number: 11692.
• Citation: 82 Wash. 520,144 P. 725
• Parties: STATE v. SEFRIT.
• Court: Washington Supreme Court

144 P. 725

82 Wash. 520

STATE v. SEFRIT.

No. 11692.

Supreme Court of Washington

December 12, 1914

Department 1. Appeal from Superior Court, Whatcom County; Wm. H Pemberton, Judge.

Frank I. Sefrit was convicted of criminal libel, and he appeals. Reversed and remanded for new trial.

Newman & Kindall, of Bellingham, for appellant.

Frank W. Bixby, Walter A. Martin, Wm. J. Biggar, and Thos. R Waters, all of Bellingham, for the State.

ELLIS J.

The defendant was tried for criminal libel upon an amended information, the substance of which was as follows:

'Defendant at Bellingham, Wash., on or about the 12th day of January, 1913, did then and there compose, print, and publish in the Sunday American-Reveille a certain editorial as follows, to wit:

"Why Does Prosecutor Defend a Rapist?

"Many of the people of Whatcom county are wondering if they are not misplacing their confidence when they repose it in Frank W. Bixby as a conscientious and unbiased official.

"The action of Bixby in the case of Walter Fulcher self-confessed rapist, is bringing many to believe that Bixby must have some personal motive in extending his protection to that scoundrel.

"Now, why is it?

"Is it true, as is charged by a woman who claims that Bixby has wronged her aged mother and herself in the matter of disposing of an estate of one of Bixby's clients, that Walter Fulcher 'knows too much about Bixby?'

"We do not know the facts of that affair and do not subscribe to the accuracy of the charges that are made. Indeed, the charges are so serious that it is difficult to credit them, but it is certainly strange that the Prosecuting Attorney of Whatcom county should be so keenly interested in a criminal of the type of Walter Fulcher.

"Fulcher ruined a fourteen-year old girl, a mere child who was homeless and had sought shelter in his house. The girl says Fulcher's wife, or a woman supposed to be his wife, abetted in that crime. Both Fulcher and the woman with whom he has been living for a number of years, belong to an organization whose idea of society is that there is nothing sacred in the marriage relation. They are practical 'free-lovers.'

"The wronged girl has for more than a year been in charge of Christian people of Seattle. She has been treated at a Seattle hospital for physical derangements due to Fulcher's lust. She is a wreck morally, physically and spiritually. One who knows the case well says it is one that will wring tears from the eyes of the hardest criminal.

"When the crime of Fulcher was made known a warrant was asked for Fulcher's arrest.

"Prosecuting Attorney Bixby refused to order it; he said there was no corroborating evidence. In this, we believe, he misstated the facts, possibly not knowing he was doing so.

"Parties interested in the case, two well known ministers, were insistent, but Bixby was obdurate, and, while there was parleying Fulcher skipped out. Some believe he was aided in making his escape by men deeply obligated to him.

"Be that as it may, no attempt was made to punish him for his crime until a few months ago when he was located in a remote hamlet of Oregon, near Coos Bay. He told an officer, after his arrest, that his whereabouts were known to Bixby and others and he was surprised that a warrant was issued for him.

"After being brought to Bellingham he went before Judge Hardin and formally pleaded guilty, receiving a sentence of six years in the state's prison. Even after appearing in court and entering the plea of guilt he was defended by Prosecuting Attorney Bixby who asked the court to be lenient.

"Fulcher now states that he has the promise of Bixby to secure his release from prison within the year, yet his victim is a physical and moral wreck for life.

"Fulcher was arrested at Vancouver, Washington, on a 'John Doe' warrant sworn to by Rev. E. S. Chappell, the local representative of the Washington Children's Home Society. This was done on the advice of Rev. Mr. Covington, the head of the organization at Seattle. Both are well known in this county as Christian gentlemen. Both of these workers in the cause of hapless children are familiar with the crime of Fulcher.

"It is stated to the American-Reveille that Fulcher was brought to Vancouver by a woman detective, expecting to keep an unlawful appointment with her. He is also said to be desired for his participation in another crime, and, that he will be charged with this crime in due course.

"Prosecuting Attorney Bixby was not informed of the issuing of the warrant for Fulcher because he previously had declined to issue a warrant. It was believed he would not approve of the warrant if the matter were presented to him.

"The warrant was sent to the sheriff of Clarke county, and, as one of the deputies of the local sheriff's office was in Portland on a visit at the time of the appearance of Fulcher in Vancouver, he was instructed to take charge of the prisoner and bring him here for trial.

"Bixby knew nothing of the matter until he visited the county jail and ran into the man. Those who saw the meeting say the prosecuting attorney was much surprised.

"No doubt of it! He knew he was up against what the gamblers call a 'show down.'

"The friends of the outraged child were ready with the proof to convict the man. They knew of the prisoner's confession of guilt. They were prepared, it is stated, to appeal to the attorney general if Bixby continued to befriend the scoundrel. But all of that trouble was obviated by Fulcher going into court and entering a plea of guilt. He admitted the charge and asked for mercy. He even had the unspeakable gall, after all that transpired, to say he had been seduced! And Bixby stood in the court room pleading for mercy for the man!

"The American-Reveille would be pleased to give Bixby or any one for him all the space he may require to give the reason for this friendship for

this self-confessed scoundrel.

"But what is the sequel?

"The prosecutor now wants Sheriff Thomas to dismiss chief deputy Larry Flannagan from his service. He says Flannagan does not work with him! He specifically said he was disappointed because he was not consulted about the arrest of Fulcher!

"Sheriff Thomas knows that his chief deputy has only done his duty and he positively refused to dismiss him.

"To have done so would have been a crime, of course, and in saying so the American-Reveille holds no brief for Larry Flannagan. We suspect that he is too well known to the people of Whatcom county to need defense against the insinuations of Mr. Bixby.

"He had nothing to do with the issuing of the warrant. He merely had it served.

"But the prisoner was Bixby's friend and therein lies the cause, or one of the causes, for Bixby's displeasure.

"It is stated about the court house that Bixby proposes to have Sheriff Thomas' payroll held up by the county commissioners if it contains the name of Deputy Sheriff Flannagan.

"We do not believe the two new commissioners will stoop to such a thing. The hold-over will not do so, either. They are not likely to permit themselves to be so misled. Those who vouch for Messrs. Shagrin and Legoe say they are men of honor and of official courage. This must be, and will be, believed until the contrary is shown, and in view of the outlook Mr. Bixby will not be able to punish a competent and faithful officer for doing his duty, even if it was to bring to the scene of his crime, after having been arrested by the sheriff of another county, a tillicum of Prosecuting Attorney Bixby.'

'That certain portions of said editorial so composed, written, and published, or caused to be composed, written, and published, by the said Frank I. Sefrit in the said Sunday American-Reveille, were malicious, libelous, and were willfully, unlawfully, and maliciously composed, printed, and published in the said Sunday American-Reveille by the said defendant Frank I. Sefrit of and concerning Frank W. Bixby in his capacity as a private citizen, in his professional capacity as a practicing attorney at law, and in his official capacity as prosecuting attorney of Whatcom county, Wash.; that the said certain portions so referred to as being malicious, libelous, and willfully, unlawfully, and maliciously composed, printed, and published by the said Frank I. Sefrit of and concerning the said Frank W. Bixby are as follows, to wit:

"Why Does Prosecutor Defend a Rapist?

"Many of the people of Whatcom county are wondering if they are not misplacing their confidence when they repose it in Frank W. Bixby as a conscientious and unbiased official.

"The action of Bixby in the case of Walter Fulcher, self-confessed rapist, is bringing many to believe that Bixby must have some personal motive in extending his protection to that scoundrel.

"Now why is it?

"Is it true, as is charged by a woman who claims that Bixby has wronged her aged mother and herself in the matter of disposing of an estate of one of Bixby's clients, that Walter Fulcher 'knows too much about Bixby?'

"We do not know the facts of that affair and do not subscribe to the accuracy of the charges that are made. Indeed, the charges are so serious that it is difficult to credit them, but it is certainly strange that the Prosecuting Attorney of Whatcom county should be so keenly interested in a criminal of the type of Fulcher. * * *

"When the crime of Fulcher was made known a warrant was asked for Fulcher's arrest.

"Prosecuting Attorney Bixby refused to order it! He said there was no corroborating evidence. In this, we believe, he misstated the facts, possibly not knowing he was doing so.

"Parties interested in the case, two well known ministers, were insistent, but Bixby was obdurate, and, while there was parleying Fulched skipped out. Some believe he was aided in making his escape by men deeply obligated to him.

"Be that as

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