Baker v. State , 97 Ga. 452 ( 1895 )

Lumpkin, Justice.

Tbe grand jury of Bartow county indicted Tbomas H. Baker and O. II. Ounyus for tbe offense of criminal libel. A. W. Fite, in bis individual capacity, was tbe prosecutor; and, in bis official cbaracter of solicitor-general of tbe circuit including tbe county named, also appeared before tbe grand jury by wbicb tbe indictment was found. Tbe alleged libel consisted of tbe publication of a letter purporting to bave been addressed to Baker by one Harrison-Smith, wbicb letter was in tbe following words:

“Pine Log, Ga., September, 18, 1894.

“Dr. Baker: Gus Fite, solicitor-general, was here Saturday, and made our cburcb a proposition to pay all tbe debt on tbe cburcb, if we would vote for Lumpkin. Tbe debt is $90.00 and interest. Jobn Vaughan told me to see you about it, before I let it go before tbe church. Let me know as quick as you can wbat to do about it. I would like for you to speak at our scboolbouse somewhere towards tbe last of tbe month. Let me know as soon as you can. There will be a large crowd at tbe cburcb Sunday, and I want to bave it given out if you will come.

“Harrison Smith.”

It was set forth in the indictment with various innuendoes, the nature of which will appear from the following copy of the letter as it therein appeared:

“Pine Log, Ga., September 18, 1894.

“Dr. Baker: Gus Pite (thereby meaning the said A. W. Pite) was here Saturday, and made our church a proposition to pay off the debt on the church, if we would vote for Lumpkin (thereby meaning William II. Lumpkin, who was then a candidate for State Senator in and for the 42nd Senatorial District of Georgia). The debt is ninety dollars and interest. John Vaughan told me to see you about it, before I let it go before the church, and let me know as quick as you can what to do about it. I would like for you to speak at our schoolhouse somewhere towards the last of the month. Let me no as soon as you can. There will be a large crowd at the church Sunday, and I want to have it given out if you will come. Harrison Smith.”

Hpon conviction, the accused filed a motion for a new trial, upon the overruling of which they assign error. This preliminary statement, in connection with the facts hereinafter stated, will render intelligible the rulings made by this court upon the questions presented for review.

1. We shall undertake no discussion of the proposition that it is improper for the solicitor-general to appear before the grand jury in a case which he himself prosecutes personally. It is, of course, his right as a citizen to be the prosecutor in any criminal case; but as he is the official counselor of the grand jury, he could not with propriety apjDear before that body and give advice in a case in which he was personally concerned. In such a case, a solicitor pro tern, should be appointed before the indictment is laid before and acted upon by the grand jury.

In the present case, however, no objection of any kind was made to the indictment on - the ground that the solicitor-general had appeared before the grand jury in the dual character of prosecutor and State’s counsel, until after the accused had been tried and convicted; and it was then too late to raise the question, that, because of the fact above recited, no proper indictment had been returned against the accused.

2. If this court, by a long and unbroken line of adjudications, has been able to definitely and finally settle any question of practice, the rules announced in the second head-note should be accepted as authoritative and conclusive. They apply to several of the grounds of the present motion assigning error in admitting evidence.

3. One of the grounds of the motion complains of error in conducting an inquiry in the presence of the jury, as to whether or not Baker, one of the accused on trial, then had .a pistol in his pocket; and it is alleged that “the circumstances attending this matter are also fully set out in the brief of evidence.” This court cannot undertake to scrutinize the brief of evidence for the purpose of ascertaining what were the “circumstances” to which allusion is here made. This announcement is in accord with the practice uniformly observed in this tribunal.

4-5. The statement contained in the fourth head-note is axiomatic. There are, in the charge of the court, some ■expressions calculated to convey the impression that if the jury should find either one of the accused on trial guilty, there should be a conviction of both. "We do not think, however, the jury were misled as to this matter, because elsewhere in his charge the judge gave them positive instructions to the effect that the guilt of one would not necessarily result in the conviction of both; and, as men of common sense, the jury must have understood that they were at liberty to convict one and acquit the other, if in their opinion the guilt of one was established beyond a reasonable doubt, and that of the other was not.

6. Among the charges complained of was an instruction relating to the newspaper in which the libel was published, to the effect that if it appeared that only one copy of the paper was sent to the county of Bartow, that would be sufficient evidence as to publication therein, without showing that the newspaper in question had a general circulation in that county. This was a correct presentation of the law on the subject. 2 Starkie on Slander, *320; Odgers on Libel and Slander, 430; 2 Bish. Cr. Proc. §800.

7. It is an indictable offense to buy or sell a vote at any public election authorized by any law of this State; but it is not a criminal offense to buy or sell votes at elections-with which the laws of this State have no concern, such, for instance, as an election for the pastor of a church, for the president of a debating society, manager of a baseball team, and the like. The Harrison letter does not, on its face, show for what office or position William H. Lumpkin was a candidate; and therefore, Mr. Fite, without violating any law of this State, could have offered to pay off the church debt on condition that the members would vote for Mr. Lumpkin, if, in fact, the election in which their votes-were desired was not one provided for or authorized by a statute of Georgia. It is perfectly clear, therefore, that-this letter does not, upon its face, impute to Mr. Fite the commission of an indictable offense. Of course, it was perfectly proper, in preparing the indictment, to show, by way of innuendo, what the charge contained in the letter really meant. This was done, as will have been seen, by the second copy of the letter appearing above in which theinnuendoes are inserted. It would have been equally proper to sustain the indictment thus prepared, by appropriate evidence. But the difficulty is, the trial judge did not, as he ought to have done, leave this matter to be demonstrated by evidence; but cut off any necessity for proving the offense as laid, by instructing the jury that the letter in question did charge an indictable offense, and was-consequently libelous per se. This was a grave error, and requires the granting of a new trial. The question whether or not, in the light of all the evidence, the letter was-libelous, is one for solution by the jury at the next hearing.

Judgment reversed.