State v. Tolley

• Decision Date: 13 May 1912
• Citation: 136 N.W. 784,23 N.D. 284
• Parties: STATE v. TOLLEY
• Court: North Dakota Supreme Court

136 N.W. 784

23 N.D. 284

STATE v. TOLLEY

Supreme Court of North Dakota

May 13, 1912

Appeal from District Court, Ward county; K. E. Leighton, J.

E. C Tolley was convicted of criminal libel, and from an order denying his motion for new trial, he appeals.

Affirmed.

George A. McGee and P. M. Clark, for appellant.

The information was defective. State v. Hakon, 21 N.D 133, 129 N.W. 234; State v. Marcks, 3 N.D. 532, 58 N.W. 25; State v. Smith, 2 N.D. 515, 52 N.W. 320; People v. Alibez, 49 Cal. 452, 1 Am. Crim. Rep. 345; People v. Stock, 21 Misc. 147, 47 N.Y.S. 94; Yost v. Com. 5 Ky. L. Rep. 935; Hawkins v Com. 70 S.W. 640, 24 Ky. L. Rep. 1034; State v Huffman, 136 Mo. 58, 36 S.W. 797; State v. Mattison, 13 N.D. 391, 100 N.W. 1091; State v. Ashpole, 127 Iowa 680, 104 N.W. 281; Thweatt v. State, 49 Tex. Crim. Rep. 617, 95 S.W. 517; State v. Brown, Miss. , 28 So. 752; State v. Gould, 26 W.Va. 258; Com. v. Melingin, 5 Ky. L. Rep. 429; People v. Hartwell, 166 N.Y. 361, 59 N.E. 929; Breeland v. State, 79 Miss. 527, 31 So. 104; State v. Comfort, 5 Mo. 357; People v. Frazier, 36 Misc. 280, 73 N.Y.S. 446; Porter v. State, 48 Tex. Crim. Rep. 125, 86 S.W. 767; Meadow v. State, 136 Ala. 67, 34 So. 183; State v. Dennison, 60 Neb. 192, 82 N.W. 628.

The court abused its discretion in limiting the cross-examination of the witness Olsen. State v. Hakon, 21 N.D. 133, 129 N.W. 234; State v. Malmberg, 14 N.D. 523, 105 N.W. 615; State v. Hazlett, 14 N.D. 491, 105 N.W. 617.

Defendant should be permitted to testify as to why he did the act and what provoked him. Wrege v. Jones, 13 N.D. 267, 112 Am. St. Rep. 679, 100 N.W. 705, 3 Ann. Cas. 482; Lauder v. Jones, 13 N.D. 527, 101 N.W. 907; State v. Johnson, 17 N.D. 560, 118 N.W. 230.

The remarks of the court were prejudicial to the defendant, and an invasion by the court of the province of the jury. State v. Hazlett, 14 N.D. 497, 105 N.W. 617; Territory v. O'Hare, 1 N.D. 30, 44 N.W. 1003; State v. Barry, 11 N.D. 428, 92 N.W. 809; Wheeler v. Wallace, 53 Mich. 355, 19 N.W. 33; Sharp v. State, 14 Am. St. Rep. 27, and note (51 Ark. 147, 10 S.W. 228) South Covington & C. Street R. Co. v. Stroh, 23 Ky. L. Rep. 1807, 57 L.R.A. 882, 66 S.W. 177; State v. Peltier, 21 N.D. 188, 129 N.W. 451; Wilson v. Territory, 9 Okla. 331, 60 P. 112, 12 Am. Crim. Rep. 582; Thomp. Trials, § 218; McMinn v. Whelan, 27 Cal. 319; People v. Hare, 57 Mich. 505, 24 N.W. 843; State v. Murphy, 9 N.D. 175, 82 N.W. 738; State v. Stowell, 60 Iowa 535, 15 N.W. 417; State v. Philpot, 97 Iowa 365, 66 N.W. 730; State v. Sharp, 51 Ark. 147, 14 Am. St. Rep. 27, 10 S.W. 228; State v. Jacobs, 30 S.C. 131, 14 Am. St. Rep. 897, 8 S.E. 698; Valley Lumber Co. v. Smith, 71 Wis. 304, 5 Am. St. Rep. 216, 37 N.W. 412; State v. Harkin, 7 Nev. 377; State v. Stowell, 60 Iowa 535, 15 N.W. 417; Russ v. The War Eagle, 9 Iowa 374; Shakman v. Potter, 98 Iowa 61, 66 N.W. 1046; State v. Lightfoot, 107 Iowa 344, 78 N.W. 41, 11 Am. Crim. Rep. 588; Moore v. State, 85 Ind. 90; People v. Webster, 111 Cal. 381, 43 P. 1114; People v. Casey, 65 Cal. 260, 3 P. 874, 5 Am. Crim. Rep. 318; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162.

Dudley L. Nash, for the State.

The information charged but one offense. State v. Bradley, 15 S.D. 148, 87 N.W. 590; People v. Barnnovitch, 16 Cal.App. 427, 117 P. 572; People v. Fitzgerald, 51 Colo. 175, 117 P. 135; People v. Gosset, 93 Cal. 641, 29 P. 246; People v. Thompson, 111 Cal. 242, 43 P. 748; People v. Gusti, 113 Cal. 177, 45 P. 263; People v. Wolfrom, 15 Cal.App. 732, 115 P. 1088; State v. Corwin, 151 Iowa 420, 131 N.W. 659; 1 Bishop, New Crim. Proc. § 586; Ben v. State, 22 Ala. 9, 58 Am. Dec. 234; State v. Kerr, 3 N.D. 523, 58 N.W. 27.

Words are actionable if they consist in a statement of facts which would naturally and presumably be understood by the hearers as a charge of crime. Stroebel v. Whitney, 31 Minn. 384, 18 N.W. 98; Lewis v. Hudson, 44 Ga. 568; Proctor v. Owens, 18 Ind. 21, 81 Am. Dec. 341; Morgan v. Livingston, 2 Rich. L. 573.

Courts will construe a libelous publication in its ordinary popular sense. Hotchkiss v. Olmstead, 37 Ind. 74; Com. v. Child, 30 Pick. 205; World Pub. Co. v. Mullen, 43 Neb. 126, 47 Am. St. Rep. 737, 61 N.W. 108; Simons v. Burnham, 102 Mich. 189, 60 N.W. 478; Ewing v. Ainger, 96 Mich. 587, 55 N.W. 996; Poprok Zapadu Co. v. Zizkovsky, 42 Neb. 64, 60 N.W. 358; Post Pub. Co. v. Hallem, 8 C. C. A. 201, 16 U. S. App. 613, 59 F. 530; Bradley v. Cramer, 59 Wis. 309, 48 Am. St. Rep. 511, 18 N.W. 268; Bettner v. Holt, 70 P. 270, 11 P. 713; Fisher v. Clement, 10 Bart. C. 472; Pennington v. Meeks, 46 Mo. 217; People v. Taylor, 36 Cal. 256; Townshend, Slander & Libel, § 84.

OPINION

FISK, J.

Appellant was convicted in the district court of Ward county of the crime of criminal libel, and he has appealed both from the judgment of conviction and from the order denying his motion for a new trial. There are 221 assignments of error, but they are grouped and argued in appellant's brief under six heads, and they will be considered in the order thus presented.

1st. It is contended that the information is defective, and the same was challenged, both by demurrer and by motion in arrest of judgment. There are four grounds of demurrer, only two of which are argued in appellant's brief, which grounds are as follows:

"2d. That the information in the above-entitled action does not substantially conform to the requirements of the Penal Code and Code of Criminal Procedure of North Dakota, 1905, and acts amendatory thereof, in this,--that the act charged as an offense in said information is not clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended or what is charged;" and,

"3d. That more than one offense is charged in said information."

The information, omitting formal parties, is as follows:

"Dudley L. Nash, state's attorney in and for the county of Ward, in the state of North Dakota, as informant here in open court, in the name and by the authority of the state of North Dakota, gives this court to understand and be informed:

"That heretofore, to wit, on the twenty-seventh day of May, in the year of our Lord, one thousand nine hundred and nine, at the county of Ward in the state of North Dakota, one E. C. Tolley, late of said county of Ward and state aforesaid, did commit the crime of criminal libel, committed as follows, to wit: That at said time and place, the said E. C. Tolley, defendant herein, did wilfully, unlawfully, feloniously, designedly, maliciously, and knowingly, and with malicious intent to injure one Ambrose B. Olson, write, print, and publish, and cause to be written, printed, and published, of and concerning him, the said Ambrose B. Olson, a certain malicious, false, and defamatory libel, in language tending to impeach the honesty, integrity, and reputation of him, the said Ambrose B. Olson, and thereby to expose him, the said Ambrose B. Olson, to public hatred, ridicule, and contempt, and deprive him of the benefits of public confidence and social intercourse; and the said Ambrose B. Olson, at the time of the said malicious and defamatory publication, was a resident of the county of Ward, in the state of North Dakota, and said libelous publication was then and there in the words and figures following, to wit:

"'I did refuse to put any money into the hands of Ambrose Olson last fall, for the reason that he has misappropriated hundreds of dollars of my money, and I have no confidence in his handling any more of it, and would not feel justified in letting him carry a rat's tail to a sick kitten.'

"The said E. C. Tolley then and there, thereby meaning and tending to charge the said Ambrose B. Olson with having committed a public offense, to wit, the crime of embezzlement, he, the said E. C. Tolley, well knowing that the said defamatory matter would expose him, the said Ambrose B. Olson, to public hatred, contempt, and ridicule, and would impeach the honesty, integrity, and reputation of him, the said Ambrose B. Olson, and deprive him, the said Ambrose B. Olson, of the benefits of public confidence, and social intercourse.

"This contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of North Dakota."

We do not think there is any merit in either of such contentions, and the trial court properly overruled such demurrer. Such information is sufficiently definite and specific in charging the manner of the commission of the crime, to apprise defendant of the nature of the charge against him, and to thus enable him to prepare his defense.

Section 8877, Rev. Codes 1905, defines criminal libel as follows: "A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation, or effigy tending to expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence or social intercourse, . . ." and the following section provides that "every person who makes or composes, dictates or procures the same to be done, or who wilfully publishes or circulates such libel, or in any way knowingly or wilfully aids or assists in making, publishing, or circulating the same, is guilty of a felony."

It will be seen that the gist of the crime is the malicious defamation of a person, made public in one or more of the modes prescribed, and tending to expose such person to public hatred, contempt, or ridicule, etc. It seems to be appellant's contention that, because the information fails to charge that the defendant committed the acts constituting the libel in but one of two ways, that is, in person or through an agent, that the same is...