State v. Wait

• Decision Date: 03 July 1890
• Parties: THE STATE OF KANSAS v. WALTER S. WAIT
• Court: Kansas Supreme Court

24 P. 354

44 Kan. 310

THE STATE OF KANSAS v. WALTER S. WAIT

Supreme Court of Kansas

July 3, 1890

Appeal from Saline District Court.

PROSECUTION for libel. Trial at the October term, 1889, and judgment for The State. The defendant Wait comes to this court. The facts so far as they are material, are stated in the opinion.

Judgment reversed and cause remanded for a new trial.

Garver & Bond, Lovitt & Norris, and C. B. Daughters, for appellant.

L. B Kellogg, attorney general, E. W. Blair, county attorney, for The State; Chas. A. Hiller, of counsel.

VALENTINE J. JOHNSTON, J., concurring. HORTON, C. J.,concur.

OPINION

VALENTINE, J.:

This was a criminal prosecution commenced in the district court of Saline county, in which it was charged upon information that the defendant, Walter S. Wait, published in the Lincoln Beacon, a weekly newspaper published in the city of Lincoln, in Lincoln county, and having a circulation in Saline county, a libelous article concerning J. G. Mohler, the prosecuting witness. A trial was had before the court and a jury, and the defendant was found guilty and sentenced to pay a fine of $ 10, and the costs of suit taxed at $ 723.25; and from this sentence the defendant appeals to this court.

It appears that on January 3, 1888, in Lincoln county, Patrick Cleary shot and killed Jesse Turner; that afterward he was charged with murder in the first degree, and tried therefor and convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for the term of twenty years; that the sentence was afterward reversed by the supreme court, and a new trial granted, (The State v. Cleary, 40 Kan. 287;) that on May 16, 1889, and succeeding days, he was again tried in the district court of Lincoln county for murder; that during such trial J. G. Mohler, an attorney at law residing in Saline county, assisted in the defense; that on May 29, 1889, the jury retired to deliberate upon their verdict, but failing to agree, they were discharged on June 1, 1889; that on June 3, 1889, Cleary was taken by a mob in Lincoln county, and hung until he was dead; that on June 13, 1889, the present defendant, Walter S. Wait, published in a weekly newspaper edited and published by him in Lincoln county, and known as the Lincoln Beacon, an article which reads as follows:

"Sentimentalists cannot arouse sympathy for Pat Cleary by appealing to the heart, or saying that the murder was committed in self-defense. Pat was a murderer on at least three occasions; was a highway robber plying his vocation from Salina to Denver, and ought to have been killed years ago. . . . Kansas people ought now to be convinced of the necessity of capital punishment. Men commit the most cold-blooded murders imaginable, and after spending thousands of dollars, a sentence of from three to twenty years is the result. We do not want the legislature abolished until after they pass a suitable law on this subject. . . . Senator Mohler is getting a great deal of free advertising these days. We will have to spring his name as a candidate for the senate; not against Ingalls, but against Burton, if this thing continues.--Salina Daily Republican.

"The number of people in Lincoln county who would have raised a finger to remove Pat Cleary had his attorney been content to have let him serve his first sentence of only twenty years, could have been counted on the fingers of one hand. That Pat Cleary is dead can be laid at the door of his attorney, J. G. Mohler, whose insatiate greed to secure not only the last dollar that Pat's family had, but the last penny his relatives and friends had, and also a $ 400 judgment covering what they might hereafter earn, must be satisfied. He had no possible hope of being able to clear Cleary with a fair jury. His only hope lay in a packed jury, and his manner of conducting the last trial showed that he relied upon hanging the jury by a 'fixed man.' His effort before the jury was so weak that it was noticed by nine out of ten who heard it. His whole effort was constituted of abuse of the witnesses and Mr. Downey, one of the attorneys for the state. The people felt that it was absolutely necessary that Pat Cleary should be where he could take the lives of no more men; and they would have been satisfied had he been imprisoned for even twenty years, for that would virtually have been a life-term. Society would then have been safe from depredations by him. But a mob could not imprison him. They had but one alternative, and Jerry Mohler forced that upon them. If he likes the advertising, he is welcome to it."

The newspaper in which this article was published also had a circulation in Saline county. On June 17, 1889, this present criminal prosecution was commenced in the district court of Saline county, J. G. Mohler being the prosecuting witness. Only that portion of the aforesaid article commencing with the words, "The number of people in Lincoln county," etc., and closing with the end of the article, is complained of. The case was tried in the manner and with the result aforesaid.

Section 11 of the bill of rights of the constitution, reads as follows:

"SEC. 11. The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted."

Sections 270, 272, and 275 of the act relating to crimes and punishments, (Gen. Stat. of 1889, PP 2444, 2446, 2449,) read as follows:

"SEC. 270. A libel is the malicious defamation of a person, and made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath, or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends."

"SEC. 272. In all prosecutions or indictments for libels, the truth thereof may be given in evidence to the jury, and if it appears to them that the matter as charged as libelous was true, and was published with good motives and for justifiable ends, the defendant shall be acquitted."

"SEC. 275. In all indictments or prosecutions for libel, the jury, after having received the direction of the court, shall have the right to determine at their discretion, the law and the fact."

That portion of § 272, above quoted, requiring the defendant, in order to make a good defense of justification, to prove that the alleged libelous matter was published "with good motives," has been held to be in violation of the constitution, and void. (The State v. Verry, 36 Kan. 416.)

It is claimed by the defendant that there was no proof of the publication of the aforesaid article in Saline county. The newspaper was published in Lincoln county, and the proof is meager of any publication or circulation thereof by the defendant, or at his instance, in Saline county. We think, however, the evidence was sufficient to go to the jury, and sufficient to sustain a finding by the jury that the article was published in Saline county.

The defendant also claims that the publication of the article belongs to a class which is privileged, or at least conditionally privileged. Now it is generally true that a newspaper publisher may without committing libel publish judicial proceedings, although such proceedings may contain false statements injurious to individual persons. In such a case he merely publishes the proceedings as judicial proceedings, without giving the statements contained therein any credit on his own account, and without reference to whether such statements are true or false. And in such cases he need not publish the entire proceedings, or publish them verbatim; but he may publish merely their substance. But this he should do fairly and truthfully. He may also make comments upon the proceedings, but the comments should also be fair, and should be such only as the proceedings themselves, or as the proceedings and the actual extrinsic facts would fairly warrant. He cannot assume to be true extrinsic defamatory matters which are not true, nor can he assume to be true anything in the proceedings which is still controverted, or which has not yet been judicially determined. To the extent already mentioned the publication and comments respecting judicial proceedings may go to all persons connected with such proceedings, to the judges or justices, to the jurors, witnesses, sheriffs, constables and bailiffs, and to the parties and their attorneys or counsel. There are also many other kinds of privileged publications or communications, and conditionally privileged publications or communications, including such as have reference to the official conduct of public officers, and to the qualifications and fitness of candidates for public office, etc.; but the matters published in the aforesaid article do not come within any of them. As to candidates for public office, see The State v. Balch, 31 Kan. 465. It is true that the matters published in the aforesaid article had some connection with judicial proceedings, but such matters were not the proceedings themselves, nor were they determined to be true by such proceedings. It is claimed that Mohler relied upon hanging the jury by a "fixed man." This "fixed man" was the juror J. P. Harman, who, it is claimed, was bribed. Now the fixing of this juror, and the procuring of a hung jury by means thereof,...