State v. The American-News Co., 7526
| Decision Date | 24 April 1936 |
| Docket Number | 7526 |
| Parties | STATE OF SOUTH DAKOTA, Respondent, v. THE AMERICAN-NEWS COMPANY, et al., Appellants. |
| Court | South Dakota Supreme Court |
THE AMERICAN-NEWS COMPANY, et al., Appellants. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. J.H. Bottum, Judge #7526—Reversed Hepperle & Fuller, Aberdeen, SD Morrison & Skaug, Mobridge, SD Oppenheimer, Dickson, Hodgson, Brown & Donnelly, St. Paul, MN Attorneys for Appellants. Geo. H. Fletcher, B.A. Walton, Geo. W. Crane, E.B. Harkin, Aberdeen, SD Attorneys for Respondent. Opinion Filed Apr 24, 1936 [See, also, 253 N.W. 492.]
In January, 1932, and for some time previously, the corporation defendant owned and published three newspapers in Aberdeen, Brown County, this state, being the Aberdeen Morning American, appearing on the morning of each weekday excepting Monday; the Aberdeen Evening News, appearing upon the evening of each weekday; and a combination of the two known as the Aberdeen American-News, appearing upon each Sunday morning. The individual defendants were the managing officers of the corporation having full control and authority over the publication of all of said newspapers and all their contents, the defendant Mathews (now deceased) being designated as the business manager thereof, and the defendant Anderson being designated as the editor thereof.
In November, 1928, during the incumbency of one Hasse as county auditor of Brown County, two county warrants were issued pursuant to claims previously filed with and allowed by the board of county commissioners, one in the amount of $42.60 to Mary Cooper, and one in the amount of $44.50 to Alfred Abraham. These warrants were never delivered to the payees, and in March, 1931, just a few days before the expiration of his second and last term as county auditor, Hasse forged indorsements upon these two warrants and cashed them. It is stated by defendants that the claims pursuant to which the warrants issued in 1928 were likewise forged by Hasse at that time, but such statement is without support upon the record before us either by admissions of Hasse or by any other proof.
In 1930 and 1931 there was in Brown County a vast amount of personal and political strife and controversy with reference to county offices and county affairs. The air was filled with charges and countercharges of graft, corruption, and fraud in the administration of the county’s business by its elected officers. As is always the case in such circumstances, some believed the charges and others did not and the citizens of the county were more or less divided into two opposing camps accordingly. In any event public excitement and interest ran high. A firm of accountants was employed to make a detailed investigation and report of all county affairs for a period of some six years back. The report of the accountants appeared to disclose that the county had been grievously defrauded in a number of its contracts for public works, particularly bridges. Public excitement intensified and there was much clamor and demand for :immediate and strenuous action. A grand jury was impaneled and four different individuals were indicted, charged with having defrauded the county in one fashion or another. Defendants in their newspapers were extremely active in the matter and the columns of the papers, both news and editorial, devoted much space thereto. The papers assumed the truth of all charges (and it is entirely possible that such charges may have been true) and were militant crusaders for the taking of prompt and effective measures. It is doubtless impossible at this distance and after this lapse of time to picture the scope and extent of public feeling aroused in the community. Groups of taxpayers and citizens held meetings and passed resolutions. Some of them demanded the immediate resignation or removal of the state’s attorney because it was claimed that he was not sufficiently aggressive in connection with desired prosecutions. Defendant Anderson was active in these meetings and was chairman and spokesman for a committee named by one such group to appear before the board of county commissioners. The columns of defendants’ papers were filled with references to “the Brown County graft cases,” “the Brown County fraud cases,” and “the Brown County bridge fraud cases.”
During the course of the investigation above referred to, the accountants discovered the county auditor’s forgery of the endorsements upon the two warrants hereinbefore mentioned, such discovery apparently originating from an inquiry addressed to the county treasurer by Mary Cooper, payee in one of said warrants, desiring to know why she had not received payment of her claim against the county. When the county auditor was confronted with the matter, he immediately confessed his guilt, made full restitution to the county of the eighty or ninety dollars involved, and expressed his desire to enter a plea of guilty and take whatever punishment the court might see fit to impose. An information was filed in the circuit court on September 4, 1931, charging him with third-degree forgery, and on the same day he entered his plea of guilty thereto before Hon. Howard Babcock, one of the judges of the Fifth Judicial Circuit. The court fixed the time for sentence for September 23, 1931, which date was later deferred to January 11, 1932. During the interim, the attorney for Hasse had apparently been endeavoring to secure petitions, letters, etc., testifying to Hasse’s previous good conduct and character and like matters, with the apparent design to make use of them at the time sentence was imposed in asking clemency from the court. Of course, such documents were not under our law a proper means or method of seeking leniency for his client. On the morning of Sunday, January 10, defendants wrote and published in their American-News an editorial under the title of “Unadulterated Gall,” which commenced as follows:
“Royal Hasse who confessed and pleaded guilty to forgery last September is to receive his sentence tomorrow, according to official announcements. When Hasse entered his plea, sentence was postponed so that in the event other evidences of similar crimes should be revealed when the complete report of the investigation was finally filed, the severity of the sentence might be affected as a consequence.
The article then proceeded to castigate and ridicule Hasse’s attorney for his efforts to secure petitions, letters, and testimonials; quoted at length sections 4959-4961, RC 1919, relating to the taking of testimony at the time of imposition of sentence, and ended as follows:
“Hasse has pleaded guilty to the serious charge of forgery. Since his plea was made, more than three months have elapsed.
“If the court wishes to mitigate the sentence, a way is provided in the foregoing South Dakota statutes. The methods employed by Hasse’s attorney, however, are in direct violation of these sections, and any citizen falling for his salesmanship may possibly live to fill the air with their vain regrets.
“Moreover, these same unwary and uninformed sympathizers if they write such letters may unwittingly bring about results the very opposite of what they contemplate.
“It is high time that the defendants in these Brown County fraud cases learn that the public is to be no longer fooled—that at least in these cases, there is no chance of the public mistaking mere audacity and bravado for honesty and sincerity.
On the next day, Monday, at the time previously fixed for sentencing Hasse, there appeared in court special counsel who had meantime been employed by Brown County to represent its interests in “these fraud cases” and attend to the prosecution thereof. Special counsel at that time advised the court that he was not satisfied that the act of Hasse in forging the indorsements and cashing the two warrants above referred to (upon one of which he had been informed against and had entered his plea of guilty) was his sole offense during his term as auditor; and that he was not satisfied that there was not a direct connection between Hasse and the frauds claimed to have been worked upon the county in regard to bridge contracts which were involved in the four or five indictments pending in said court against other persons and corporations commonly referred to as “the bridge fraud cases.” The trial judge stated in substance that if those suspicions of the special prosecutor were well founded, he desired to know the facts and take them into consideration in imposing sentence, so he again continued the matter until Tuesday, February 2, when he would next have occasion to be in Aberdeen (his place of residence being elsewhere in the circuit). On that day Hasse and his attorney again appeared before the court, as did the special prosecutor, who introduced a considerable amount of testimony in an effort to prove other criminal acts on the part of Hasse and more particularly to prove some sort of a connection between Hasse and the “bridge fraud cases.” This attempted proof did not seem convincing to the trial judge, who stated that he continued to be of the opinion that the case was one of a young man of good family and previous good character and reputation who, for some unexplainable reason, had committed this criminal offense, upon discovery had admitted his guilt and made restitution, and who had already suffered some degree of punishment by exposure to disgrace and loss of standing in the community. Pursuant to that view, he said that he believed the case to be one for some appreciable degree of judicial clemency and orally announced in open court a sentence of six months in the county jail and a fine of $300, service of the jail sentence to be suspended upon payment of the fine and during good behavior. We are not prepared to say from the record before us that this was an unjust or an unwise sentence, or that it was unduly lenient or that it constituted any abuse of judicial discretion. It appears, however, that the...
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