Welch v. Tribune Pub. Co.

• Citation: 83 Mich. 661,47 N.W. 562
• Court: Supreme Court of Michigan
• Decision Date: 24 December 1890
• Parties: WELCH v. TRIBUNE PUB. CO.

47 N.W. 562

83 Mich. 661

WELCH v. TRIBUNE PUB. CO.

Supreme Court of Michigan

December 24, 1890

Error to circuit court, Wayne county; HENRY N. BREVOORT, Judge.

E T. Wood, (W. H. H. Russell, of counsel,) for appellant.

John Atkinson, for appellee.

CHAMPLIN, C.J.

The plaintiff brought an action of trespass on the case against defendant for libel. In June, 1889, the plaintiff was summoned to appear in the recorder's court of the city of Detroit, as a talesman from which to select a jury for the trial of Nelson Brule, then about to be tried upon an information charging him with assaulting, with intent to kill and murder, Ida Corneau. He was examined as to his qualifications, and admitted and sworn as a juror in the case. After hearing the testimony, the argument of counsel, and the charges of the court, the jury retired to consider the case, and, after being absent a short time, they returned into court, and reported that they found that Brule was not guilty. The next day the Detroit Tribune, published by the defendant contained an editorial, reciting the circumstances of the alleged attempted killing, and animadverting severely upon the jury for having returned such a verdict, which it characterized as outrageous. The libelous words charged in the declaration read as follows: "Every little while the popular faith in our boasted system of trial by jury gets a tremendous wrench by the rendition of a specially outrageous verdict on the part of twelve prize jackasses who get into the jury box. Such an event happened in Detroit yesterday." The article then went on to state as follows: "Some time ago one Nelson Brule, a young married man with a family, concealing that fact, proceeded to 'make love' to a young lady of good family and character, and so far enlisted her affections as to secure her tacit consent to a proposal of marriage. While she was delaying, in order to become assured that her suitor's parents would take kindly to her,-a very natural hesitation on a prudent young lady's part,-she learned the true condition of Brule's domestic affairs, and then refused to have anything further to do with him. A few days after she had made this announcement to him, he called on her again saying that he was going home, and asking her to see him off on the train, and bid him good-by. This impudent proposition she declined, but weakly consented to walk down the street with him. While doing this he suddenly seized her round the neck, placed a pistol to her head, and fired. She screamed, staggered, and fell, and, supposing he had accomplished his murderous intent, he put another ball into his own head,-unfortunately where it didn't do the most good. Both persons recovered, and the would-be murderer has been on trial in the recorder's court for the last three days on a charge of assault with intent to murder; the following citizens of Detroit composing the jury: Thomas Hurst, M. P. Christian, Henry M. Bailey, H. A. Marks, Thomas Griffen, Joseph Atkinson, James Keligher, Charles M. Welch, G. B. Noble, Charles F. Ferris, Morgan Lacey, Samuel Ferguson. We have narrated in brief the plain facts of the case about which there is not the slightest controversy. The defense set up was emotional insanity. Here was a man attempting for months to persuade a young girl to marry him, which, had he succeeded, would have involved the crime of bigamy on his part. If that was not his real intention, only one other object is supposable in his case,-that of the crime of his victim's seduction. Either purpose brands him a deliberate villain. There was nothing emotional about this intentional hunting of an innocent girl; but when foiled in his dastardly and devilish efforts he seeks to murder the object of his long pursuit, 12 men are found to acquit him on the ground that he was insane just at the moment of committing the act. By this verdict he is turned loose in the community to repeat his venture if he chooses, if he can go where his identity and history will not be known. No wonder that a general outburst of indignation has followed the rendition of such an outrageous verdict. Every young woman's life in Detroit is rendered less secure by the result of this trial. Every villain is encouraged to believe his chances of escape bettered if he plots against the happiness, the virtue, and the life of an innocent girl. If there seems to be anything out of the way in these few feeble remarks, charge it up to emotional insanity." A few days after, another article appeared in the paper under the heading, "This is Encouraging," and commenting on and commending a coroner's jury, who found that the deceased "came to his death through an assault made upon his person by John Cook," added: "The infamous Brule jury, and the scarcely less censurable coroner's jury in the Crawford Case, are quite enough of that kind of verdict-makers. An outraged and indignant public wants no more of that sort. The toughs and crooks of Detroit have hitherto had altogether too much liberty, and too many friends at court." Later another article appeared which purported to report the proceedings of a religious meeting at the Casino Tabernacle, in which a speaker said: "You are all under sentence of death. There is no jury which is going to perjure themselves and let you off, as one did in this city a few weeks ago." These articles were all counted upon as libelous in plaintiff's declaration. The defendant pleaded the general issue, and gave notice that it would insist upon the truth of the articles published as a defense to the action. The trial resulted in a verdict for defendant.

The first assignment of error relates to the action of the court in excusing the juror Joseph G. Campau, who was called and examined by counsel of both parties, who announced themselves as satisfied with him as a juror. The court, without a challenge being interposed, and without stating any cause or reason therefor, excused the juror, against the protest of the plaintiff. We do not think the judge has a right to reject a qualified juror with whom the parties are satisfied, unless for sufficient cause; and such cause should appear upon the record. Pearse v. Rogers, 2 Fost. & F. 137. The circuit judge is not invested with any right of peremptory challenge. He can excuse for cause, but the cause must be stated, so that it may appear of record. Proff. Jury. � 140. The exercise of the power to discharge a juror by the circuit judge of his own volition is not a matter of discretion. It must be based upon some cause. It will not do to hold that a circuit judge may, without assigning any reason, discharge jurors at his mere will or caprice. If he may so discharge one juror he may discharge a dozen, and compel parties, after they have exhausted their peremptory challenges, to accept such a jury as he is satisfied with. Counsel for defendant contends that the record does not show that plaintiff was prejudiced, and that the presumption is in favor of judicial action. The record does disclose that the juror was one of the regular panel, and it further discloses that talesmen were resorted to in order to fill the panel which tried the cause. The law has provided measures for the selection and return of jurors to serve in the trial of causes, and a party has a right, if there be no legal objection to the jurors so returned, to have his cause tried by jurors so selected, unless rejected in the manner provided by law.

Upon the trial of the cause, the plaintiff took the witness stand and testified in his own behalf. He stated that he heard all the evidence in the case, the arguments of counsel, and the instructions of the court, after which the jury retired to the jury-room to consider the evidence, and agree upon a verdict; that they were out something over an hour, and returned into court with a verdict of "not guilty." He was then asked...