State v. Wilcox

• Decision Date: 07 June 1913
• Docket Number: 18,462
• Citation: 90 Kan. 80,132 P. 982
• Parties: THE STATE OF KANSAS, Appellee, v. E. C. WILCOX et al. (HERMAN C. ERICSSON and CORY BLACK, Appellants)
• Court: Kansas Supreme Court

132 P. 982

90 Kan. 80

THE STATE OF KANSAS, Appellee, v. E. C. WILCOX et al. (HERMAN C. ERICSSON and CORY BLACK, Appellants)

No. 18,462

Supreme Court of Kansas

June 7, 1913

Decided January, 1913.

Appeal from Shawnee district court, division No. 2.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LIBEL--Information--Copies of Affidavits Attached--Information Sufficient. Where copies of affidavits which purport to have been sworn to before a notary public on a certain date are attached to an information which charges a criminal libel based thereon, the information sufficiently sets forth the manner and time of the publication.

2. Subsequent Publications--Parts of Res Gestae--Evidence of Malice. In a prosecution against several persons for criminal libel evidence of publications made subsequent to the one relied upon by the state, which appear to have been so connected with the main purpose as to make them parts of the res gestae, are admissible as proof of malice, and where it is claimed that the several defendants conspired and confederated together for the purpose of committing the offense such evidence is admissible as tending to establish the conspiracy.

3. Communications Made in Furtherance of Conspiracy--Not Privileged. The general rule that communications made to a prosecuting officer are privileged when made in good faith in the prosecution of an inquiry regarding a crime which has been committed, can not be successfully invoked by the defendants in an action for criminal libel where the communications were made to the prosecuting officer in furtherance of a conspiracy to commit an indictable offense.

4. LIBEL -- Whether Privileged -- Mixed Question of Fact and Law. Under the facts stated in the opinion, the question of qualified privilege became a mixed question of fact and of law, and the court properly admitted evidence of the communications and submitted to the jury the question whether the same were privileged, admonishing them that they should wholly disregard the communications unless they found from the evidence that when the communications were made to the prosecuting officer the defendants knew them to be false and knew that no offense had been committed, but made them as part of a plan agreed upon between themselves to bring a false and baseless accusation against the libelee.

5. CONSPIRATORS--Declarations of One--Admissible Against the Others. In this case it is held that there was no violation of the general rule which requires that before the acts and declarations of one of the alleged conspirators may be proved a prima facie showing of a conspiracy must be offered.

A. M. Harvey, J. E. Addington, both of Topeka, C. A. Crowley, of Council Grove, and E. C. Wilcox, of Anthony, for the appellants.

John S. Dawson, attorney-general, W. E. Atchison, county attorney, A. L. Noble, J. N. Tincher, both of Medicine Lodge, Ernest R. Simon, and James A. McClure, both of Topeka, for the appellee.

OPINION

PORTER, J.:

Herman C. Ericsson, Cory Black and E. C. Wilcox were jointly charged in one information with criminal libel. On the trial Wilcox was acquitted. Ericsson and Black were found guilty, and appeal.

The information in substance charged that the three defendants, together with Charlotte Thomann, H. C. Medlock and Leta Foster, conspiring and confederating together, and aiding, assisting and abetting each other, willfully and maliciously intending to vilify and defame one P. B. Gillett, procured to be made public and circulated certain false and libelous affidavits charging him with misconduct with Leta Foster, a girl of less than eighteen years of age. Copies of the affidavits alleged to be libelous were attached to the information. Two of these purported to have been verified before a notary public of Shawnee county on February 10, 1912; one by Leta Foster, the other by Charlotte Thomann. Two others purported to be sworn to before the same notary February 19, 1912; one by Ericsson and one by Medlock. All the affidavits purported to refer to the conduct of the person libeled and the said Leta Foster in a certain room in the National hotel in the city of Topeka on the morning of January 30, 1912. E. C. Wilcox has been engaged in the practice of law at Anthony for twenty-five years and was county attorney of Harper county for the two years ending in January, 1913. The person mentioned in the information as the libelee, and who is the complaining witness, has been the judge of that district for the past fifteen years. In August, 1911, disbarment proceedings were filed in the supreme court against Wilcox, which are still pending. Some of the charges against him relate to matters alleged to have occurred in his practice before the district court, and if true indicate that for some years he has not been on friendly terms with the complaining witness.

Defendant Cory Black resides at Council Grove, where he is engaged in the furniture business. He formerly lived in Harper county, and for more than twenty years has been a close, intimate friend of Wilcox. It is the theory of the prosecution that Black undertook the task of assisting his friend out of difficulties, and that in furtherance of such design he conspired with the others mentioned in the information to procure the alleged false and libelous charge to be made in order that it might be used as a "counter-irritant" in the disbarment proceedings. While the evidence does not show that the complaining witness had been active in the proceedings to disbar Wilcox, there was evidence which fairly tended to show that Wilcox either believed such to be the case, or that he thought that the judge of the court possessed an influence over others which, if brought to bear upon them, would result to his advantage in the disbarment proceedings. During the holiday season of 1911 Black, with his family, visited for a week at the home of Wilcox, returning to Council Grove the latter part of December. Defendant Ericsson is a private detective. He had recently spent some time at Anthony at work for the state and assisting Wilcox, the county attorney, in prosecuting liquor cases. Black, immediately upon his return home, wrote to the ex-chief of police of Topeka, asking for the address of Ericsson. On the 4th or 5th of January Ericsson appeared at Council Grove; before that time he had never seen or heard of Black. After a short conference, according to his testimony, he was employed by Black at five dollars a day and expenses to look up the charges against Wilcox and to find out if there was any collusion on the part of any persons who might be prejudiced against Wilcox, and he was to look up both sides of that case. Ericsson was at Anthony four days later as a witness in a liquor case prosecuted by Wilcox. In his testimony in this case he denied that he had any conversation with Wilcox at that time about having been employed by Black, but admits that while at Anthony he secured such information as he could concerning the disbarment proceedings. Defendant Black testified that he employed Ericsson without the knowledge of Wilcox, entirely upon his own initiative, and only for the purpose of ascertaining whether the disbarment charges against his friend were true or false. To assist him in his investigation Ericsson employed H. C. Medlock, who lived in Topeka. On January 28 Medlock went to Florence and brought Leta Foster to Topeka, where she met Ericsson and received her instructions from him. It appears to have been understood that Judge Gillett would be in Topeka about that time, in attendance on the state bar association and the banquet of the Kansas Day Club. From the time of his arrival on the 28th until he left the city on January 30 he was constantly shadowed by Ericsson and Medlock. They sat near him at the banquet and followed him to the National hotel, where he was stopping. The Thomann woman and Leta Foster by prearrangement were at the Fifth Avenue hotel. Medlock registered them under assumed names. Leta Foster testified that Ericsson and Medlock and Mrs. Thomann persuaded her to go to the National hotel on the morning of January 30, where a room was procured for her; that she never spoke to or with the libelee, but that he was pointed out to her by Ericsson in the lobby of the hotel; that in the evening, after she had returned to the other hotel, Ericsson brought a typewriter to the room occupied by Medlock and Mrs. Thomann and made out a paper which, at his solicitation, she signed and acknowledged the next morning before a notary public. The paper appears to have been in the form of an affidavit but was not sworn to. A similar paper was signed and acknowledged but was not sworn to. A similar paper was signed and acknowledged by Medlock. Leta Foster further testified that Ericsson promised to pay her $ 45 for her services and assured her that nothing would be done with the paper she had signed to hurt her in any way, and that if the person charged therein with misconduct toward her should get hold of the paper he would do nothing except "to let his lawyer friend go." Immediately after obtaining the written statements Ericsson went to Council Grove and made his first report to Black and left with him the statements. This was on February 1. Black testified:

"I told him that I wanted him to continue in my employ and secure additional information such as he could on the disbarment case and as regards these statements he had brought me; I did not know to what extent they might be of any interest. I could see no connection between them and the case for which he was employed by me, but that if he should have an opportunity to corroborate them in any way and cared to do so, he might do that. I told him I thought they were very crude and...