Downing v. Brown , 3 Colo. 571 ( 1877 )

Thatcher, C. J.

This was an action on the case for libel, brought by plaintiff in error against the defendant in error in the court below.

The declaration contains seven counts. The first alleges that the defendant had charged the plaintiff with the commission of perjury; the second with the commission of perjury and murder ; the third with the commission of perjury; the fourth with the commission of murder; the fifth with the commission of murder; the sixth with the commission of felonious offenses; the seventh with “stuffing the ballot-box” at a certain general election in Arapahoe county. To the whole declaration the plea of the general issue was interposed. To the first count, two pleas of justification were filed, the first of which averred that the plaintiff had forged two certain filings, or applications for lots, purporting to be signed by M. O. Dailey; and the second alleges, that the plaintiff, with intent to defraud the city of Denver,. altered and forged a certain registry, or record book, and authentic matter of a public nature, in the office of the probate judge of Arapahoe county, by insertions, interlineations and alterations in writing and figures on certain designated pages of said book.

To the seventh count a plea of justification was filed.

To the counts from the second to the sixth, inclusive of both, the general issue was the sole plea.

An important inquiry relates to the character of the “.filing book” introduced in evidence. Can forgery be predicated of it under our statutes ?

Sec. 69, chap. 22, p. 208, R. S., provides, “ that every person who shall falsely make, alter, forge, or counterfeit any record, or other authentic matter of a public nature * * * * * shall be deemed guilty of forgery.”

Sec. 87 of the same chapter makes it a felonious offense for any “ public officer or other person to forge, deface or falsify any document or instrument recorded, or any registry, * * * * * or to alter, deface or falsify any minute, document, book, or any proceeding whatever, of or belonging to any public office within this Territory.”

A record is defined by Bouvier, in his law dictionary, to be a written memorial made by a public officer, authorized by law to perform that function, and intended'to serve as evidence of something, written, said, or done.

We are satisfied that the probate judge’s memorandum-book was not required by law to be kept. It was a convenient book of reference, in which entries were made, generally by the probate judge, who was acting as trustee for the occupants of lots within the limits of the congressional grant, and occasionally by the beneficiaries’ attorneys. It contained brief memoranda, purporting to give the names of certain persons who had made applications for lots- — the dates such applications were made — whether a deed for the lot or lots applied for had been executed, and in some cases, whether adverse filings had been made on the same lots, and various other minutes which could only be made intelligible by oral testimony. The original applications deposited as required by law, with the probate judge, stood as pleadings in every case ot contest between adverse claimants in the probate court. R. S., p. .622. But the trustee’s minute in the “filing-book” served no such purpose, nor was it in any sense evidentiary. It was not an authorized memorial of the trustee’s acts and proceedings. But if not a record, it is contended that it is an authentic matter of a public nature. Authentic, in legal parlance, means “vested with all due formalities and legally attested.” Webster’s Die. No such claim can be made for this book ; nor do we think that it can be asserted that it is a book “of or belonging to any public office.” In our opinion, it has no official character.

To give to the entries in the memorandum-book, concerning which forgery is charged and proof offered, the inviolable sanctity of a record, or other authentic matter of a public nature, would be an innovation whose consequences would necessarily be mischievous. Moore v. Kline, 1 Pen. & Watts, 129; In re Corryell, 22 Cal. 179; Weed v. Weed, 25 Conn. 344; State v. Young, 46 N. H. 266.

The only adjudicated case cited by counsel for defendant in error in support of the view that an alteration or insertion of a minute in the memorandum-book, with intent to defraud (Ream v. Commonwealth, 3 Serg. & Rawle, 207), is forgery, does not go to the extent claimed by counsel. In that case, the forgery of which Beam was convicted was of an enrollment, “ directed by law, and preserved for the use of the public.”

Of what efficacy in law was the memorandum of' filings purporting to have been made by Alexander Safely and others \

If the memorandum had been genuine, it could affect no legal rights — it could have been the foundation of no legal liability. However reprehensible may have been the conduct of the plaintiff in error, and however corrupt his motives may have been, we are reluctantly impelled to the conclusion that, in no view of the case, were the unauthorized memoranda in the so-called “filing-book,” the subject of forgery.

It is assigned for error, that the court instructed the jury that when the truth of the charge is plead in justification, the plea need only be supported by a preponderance of evidence.

As to the soundness of this instruction, the anthorities are in conflict. When a person is on trial for a crime, when life.or liberty is in jeopardy, every reasonable doubt arising from the evidence as to his guilt must be resolved in favor of his acquittal. In every such case, if the jury is not satisfied, beyond a reasonable doubt, of the prisoner’s guilt, however strongly the evidence may preponderate in that direction, the law will not tolerate a conviction. In civil causes a different rule generally prevails, and although many authorities except from the rule the plea of justification interposed in a civil action for libel, and require that the truth of the charge shall be established beyond a reasonable doubt, we fail to discover any controlling reason for such an exception. When a party, desiring to vindicate his character against the libelous aspersions of others, seeks redress in a court, it would seem but just that controverted questions raised by the pleadings should be tried, and a verdict rendered in accordance with the fules applicable in other civil causes.

In England, there was a substantial reason for requiring a more conclusive degree of certainty of the truth of the charge in a civil action for libel which does not apply in this country. There, if the plea of justification, where a felony had been charged, was sustained by the verdict of a jury, the verdict stood as an indictment. Says Lord Kknyon, in Cook v. Field, 3 Esp. 133, “where the defendant justifies words which amount to a charge of felony, and proves his justification, the plaintiff may be put upon his trial by that verdict without the intervention of a grand jury.” Here no such result follows, and the reason of the rule ceases to operate. Neither life nor liberty is in any degree imperiled by the verdict. No other consequences follow it than follows a verdict in any other civil cause. It does not take the place of an indictment. If the truth of the words published is by a preponderance of evidence proved to the satisfaction of the jury, the plea is sustained. The adoption of this rule does not change or modify the presumption of innocence which the law raises in favor of the plaintiff, nor does it waive the necessity of proving every element that enters into the crime charged, by evidence of a kind and quantity that in the minds of the jury overturns the case made by the plaintiff. Ellis v. Buzzell, 60 Me. 210, reported also in 11 Am. Rep. 204, is a leading case in support of-this view. See, also, Folsom v. Brown, 5 Foster, 114; Spruill v. Cooper, 16 Ala. 791; Mathews v. Huntley, 9 N. H. 147; Kincade v. Bradshaw, 3 Hawk’s Law (N. C.) R. 63.

Where perjury is charged, the evidence of two witnesses, or one witness and corroborating circumstances, is necessary to sustain the plea of justification; but the requisite evidence being adduced however it may conflict with other testimony, as in any other civil case, the jury must weigh it, and will be warranted in finding a verdict in support of the plea, although they may not be satisfied of the truth beyond a reasonable doubt. Spruill v. Cooper, cited supra.

What meaning the publisher designed should be attached to the language he employed, neither court nor jury, as a general rule, need inquire. But the sense in which it may be understood by those to whom it is published is material. In the absence of ambiguity, words must be taken to mean what they legally import, without regard to the secret intent of the publisher. If in legal contemplation they clearly charge a felony, the publisher cannot be allowed to impute to them at the trial a different meaning. The ordinary and necessary import of the language in Article “A, ” -is, that the plaintiff in error had committed forgery. Whatever meaning the defendant in error may have designed to convey, the language is not capable of any other construction. Townshend on Slander and Libel, § 139.

It is insisted that the crimes of perjury, murder and all other sins are imputed to the plaintiff in error by article “B,” which is as follows:

“More facts of Jack Downing’s ‘reign.’

“How THE PROPERTY INTERESTS OF DENVER WERE ‘ LED TO THE ALTAR.” ’

“ My conscience hath a thousand several tongues ,

And every tongue brings in a several tale ; '

And every tale condemns me for a villain.

Porjury ! foul perjury 1! in the highest degree ;

Murder ! stem murder ! i in the direst degree ;

All several sins, all used in each degree,

Throng to the bar, crying all, Guilty 1 Guilty! ”

—Richard III,

“ And yet Jack Downing affects to laugh with a low guttural sound, Ha ! ha !! ha !!! ”

This language, as applied to the plaintiff in error, is not free from ambiguity, and, to ascertain its meaning, the notorious extraneous circumstances (which were fully disclosed at the trial), under which it was used, may be taken into consideration. In the light of such circumstances, whether the entire article, taken together, having reference not only to the quotation, but to the heading and concluding sentence, are to be interpreted as charging the plaintiff in error with the crimes of murder and perjury, and all other sins, or as only contrasting Richard with the plaintiff in error, “representing the former arraigned at the bar of his own conscience, and convicted by it of murder, perjury, and all other sins, and the plaintiff in error, unstricken by conscience, affecting to laugh at his own forgeries,” with the commission of which the defendant in error had before charged him in the Denver Tribune, of which he was the proprietor, was properly submitted to the jury.

The effect of the language in article “B” upon the community (taken as a whole, its meaning is doubtful) could only be determined by a jury, after hearing the testimony of witnesses as to the occasion upon which, and the circumstances unaer which the language was used. In order to ascertain its sense, the jury should be made to occupy, as far as possible, the situation of the parties to whom it was published. Says Townshend on Slander and Libel, p. 166 : “For the purpose of its construction, language is to be regarded not merely with reference to the words employed, but according to the sense or meaning which, all the circumstances of its publication considered, the language may be fairly presumed to have conveyed to those to whom it was published. The language is always to be regarded with reference to what has been its effect, actual or presumed, and the sense is to be arrived at with the help of the cause and occasion of its publication.”

Thus, in Van Rensselaer v. Dale, 1 Johns. Cases, 279, the language, “ John Keating is as damned a rascal as ever lived, and all "who joined his party and the procession on the Fourth of July are a set of black-hearted highwaymen, robbers andvmurderers,” in view of the concomitant circumstances, and having reference, to the transaction to which it related, did not, it was held, import that Keating and his party were either highwaymen, robbers or murderers. Quinn v. O'Gara, 2 E. D. Smith, 388.

The instructions, so far as variant from the rules here laid down for the purpose of determining the meaning of the language used, are erroneous.

Although the instruction that “the defendant is justified in law, and exempt from all responsibility if the matter be true,” would be unobjectionable if confined to the counts to which the truth was specially plead in justification, it tended, in the unrestricted form' in which it was given, to mislead the jury. Pleas of- justification were interposed only to the first and seventh counts. The general issue was the only response to the other five, under which truth could not be proved in justification. The truth must always be specially plead. Porter v. Botkins, 59 Penn. 484. Townshend on Slander and Libel, § 409; Starkie on Slander and Libel, 543*.

• The court refused to instruct the jury, upon the request of the plaintiff, as follows:

í£The jury are instructed, that if a material part of a plea of justification fails, the plea fails altogether, and if a defendant in an action of libel interposes a plea of justification, and abandons or fails to prove his plea, such failure to prove, or abandonment of the plea, may be taken into consideration by the jury in estimating damages.- It is evidence tending to show malice, and continued malice.”

The refusal was error. This instruction correctly states the law, and was warranted by the evidence. When the defendant republishes a criminal charge by putting it on the records of the court, he does it at his own risk. If at the trial he fails to prove its truth, he intensifies the injury originally done to the plaintiff. In such case, the failure of truth may properly be considered in estimating damages. Updegrove v. Zimmerman, 13 Penn. 621; Fero v. Ruscoe, 4 N. Y. 165; Jackson v. Stetson, 15 Mass. 48; Wilson v. Nations, 5 Yerg. 211; Spencer v. McMasters, 16 Ill. 405.

The court erred in assuming, in certain parts of its charge, that forgery and the other crimes imputed to plaintiff in error, had been proved ; and that the question for the jury to determine was, whether the plaintiff in error had committed them.

Controverted questions of fact are exclusively for the jury, and it was clearly error in the court to assume that any of the facts .in dispute had been established. No authorities need be cited in support of a doctrine so universally recognized.

The judgment of the court below must be reversed with costs and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.