Malone v. State , 192 Wis. 379 ( 1927 )

Owen, J.

It is not contended on the part of the appellant that the verdict is not supported by the evidence. There are eleven assignments of error, and we will discuss those which seem worthy of notice.

Error is first assigned because the court admitted testimony of the statements made at the residence of E. O. Sankey after the meeting of December 13th. It is well settled that, except as to certain specified offenses, evidence may not be received in a criminal prosecution showing or tending to show that the defendant was guilty of the commission of other or similar offenses at some other place and time than that mentioned in the indictment or information. It is not contended here that the evidence was admissible either as direct or corroboratory evidence of the fact that Malone uttered the defamatory statements at the time and place as charged in the information. The court stated that the evidence was received for the purpose of showing malice — a greater degree of malice than that implied by law. The statute, sec. 348.41, under which the defendant was convicted, provides as follows:

“Every person who, in the presence and hearing of another, other than the person slandered, whether he be present or not, shall maliciously speak of or concerning any person, any false or defamatory words or language which shall injure or impair the reputation of such person for virtue or chastity or which shall expose him to hatred, contempt, or ridicule shall be guilty of a misdemeanor for which said person shall be punished as heretofore provided in subsection (1). Every slander herein mentioned shall be deemed malicious if no justification therefor be shown and shall be justified when the language charged as slanderous, false, or defamatory was true and was spoken with good motives and for justifiable ends.”

It will be noticed that the statute provides that the slander shall be deemed malicious if no justification thereof is shown. In the instant case no justification was attempted. The defense consisted of a denial that the words alleged were spoken by the defendant. The question of whether they were maliciously spoken, therefore, was not in issue. It was not necessary for the State to prove malice on the part of the defendant in order to justify a conviction. It is a rule universally recognized in the law of libel and slander that the utterance or publication of similar words upon other occasions is inadmissible for- the purpose of proving the fact that they were uttered .upon the occasion charged. They are admissible only for the'purpose of showing malice. In civil actions for libel or slander'the question of malice is, as a rule, material. Where the words themselves do not impute malice then malice must be proved. Where the words themselves do impute malice, then evidence tending to show the utterance of similar words upon other occasions is admissible to disclose the extent of the malice in order to enable the jury to fix punitory damages. Gambrill v. Schooley, 95 Md. 260, 52 Atl. 500, 63 L. R. A. 427. But in view of the provisions of. the statute upon which this prosecution is founded, no reason is discoverable for making an issue of malice in view of the character of the defense interposed. Had the defense been one of justification, then upon rebuttal it would have been competent and proper for the State to introduce evidence tending to establish malice on the part of the accused. Where, however, the law presumes malice from the mere speaking of the words, if no justification .therefor be shown, and where there is no attempt to show justification, the question of malice is utterly immaterial. We must hold that the receipt of the evidence relating to what Malone said at the residence after the meeting was error. The same is true with reference to the reception in evidence of a hand-bill or circular put out by the defendant subsequent to the utterance of the words charged constituting a defiant challenge on the part of Malone to Father Grosnick f.or a debate. That publication was in no sense material upon the question of whether the defendant uttered the words charged in the information. It could only go to the question of malice, which, as we have seen, was utterly an immaterial issue under the state of the record.

The question now arises whether the admission of this evidence was prejudicial error. Unless we can say that the same result would probably have obtained in the absence of this testimony, the error must be construed as prejudicial. The evidence shows that there were from one to two hundred people present in the hall during the evening in question. At the most, the State produced no more than four witnesses who testified that the defendant gave utterance to the words charged in the information. The defendant denied that he spoke the words charged.. The defendant placed upon the stand upwards of twelve witnesses, all of whom testified that they did not hear the defendant speak the words charged. The testimony of the witnesses who related the statements made by Malone at the house after the meeting is much more impressive than that of any of the witnesses who testified to what Malone said at the meeting. The statements made by Malone at the house, as testified to by the witness Roy Harteau, for instance, were much stronger and were calculated to arouse greater prejudice against the defendant than the statements attributed to him as having been made at the hall. We do not want to be understood as saying that the case made against Malone was weak. But we cannot blind our eyes to the fact that there is a sharp dispute in the evidence upon the main issue, and we cannot say that in the absence of the incompetent evidence the same result would have obtained.

From these conclusions it results that the error was prejudicial and there must be a new trial. Although this disposes of the case, we will discuss some other assignments of error for the future guidance of the court upon a new trial.

It is plain to be seen from the record that the district attorney had most unwilling witnesses upon whom to rely to establish the guilt of defendant. It plainly appears that upon numerous occasions he was surprised at the testimony given by his own witnesses, such testimony being different, and more favorable to the defendant, than that given upon the preliminary examination and upon other occasions. In numerous instances he asked his witnesses if they did not téstify differently upon the preliminary examination, and read from -their testimony given upon the preliminary examination by question and answer, asking them if they did not so testify. This method of examination was objected to by- the defendant’s attorney upon the ground that it was an attempt by the district attorney to impeach his own witnesses. It should be borne in mind, however, that this method of examination was not in any instance followed up by the district attorney by an offer'to prove what the witness did in fact testify to upon the preliminary examination. In a great many instances the witnesses admitted that they had so testified upon the preliminary examination, and the inquiry rested there. ' Unquestionably the rule is that one may not impeach his own witness “by direct testimony either of his bad reputation for veracity, or that he testifies to one thing in court and asserts the falsity of it out of court.” Collins v. Hoehle, 99 Wis. 639, 75 N. W. 416. This the district attorney did not do. However, one who is surprised by the testimony of his witness “may interrogate the witness in respect to previous statements inconsistent with the present testimony, for the purpose of probing his recollection. He may in this way show the witness that he is mistaken, and give him an opportunity to explain the apparent inconsistency. This is also proper to show the circumstances which induced the party to call the witness. But where the sole effect of answers to such questions would be to discredit the witness, the questions should be excluded; and, if the recollection of the witness is not refreshed after such questions, the party cannot prove his contradictory statements by other witnesses.” Collins v. Hoehle, supra, at p. 649. See, also, Richards v. State, 82 Wis. 172, at p. 180, 51 N. W. 652; and to the effect that under such circumstances leading questions may be asked, see Baker v. State, 69 Wis. 32, 33 N. W. 52; Schuster v. State, 80 Wis. 107, 117, 49 N. W. 30.

Error is assigned because of a persistent ruling of the court, illustrated by the following question propounded by the attorney for the defendant to the witness’: “What is the fact, Mr. Himes, as to whether or not Mr. Malone made a statement of a.ny kind concerning Grosnick and illegitimate children?” This was objected to as leading. The objection was sustained. We cannot say that this was a leading question. It was a direct question, but it was not leading. It did not suggest the answer. The State had charged the defendant with making certain statements. He claimed he did not make them. He was called upon to prove a negative. We do not know of any practical way in which that may be done except by putting on witnesses and asking them whether they heard the statements made. Any other method is cumbersome, circuitous, and most unsatisfactory. The objection to this type of question should have been overruled.

The State was permitted to introduce a catalogue or directory issued by the Catholic Church containing the names of the ordained priests in the Catholic Church in America. This was done for the purpose of showing that there was.no other ordained priest by the name of Grosnick in the Catholic Church of this country, and to establish the fact that the Grosnick at Manawa to which Malone referred was the same person as the plaintiff in this action. That catalogues, directories, and other publications edited and published by organizations such as the Catholic Church, put out for the purpose of furnishing general information to its members and to those entitled thereto, and where there is every reason to suppose that they are true and correct, should be receivable as at least prima facie evidence of the truth of the matters therein asserted, may be urged with much reason. It is in the nature of information upon which people interested therein generally rely, and it is generally known that such publications, in the main, correctly disclose the facts with which they purport to deal. However, we find no precedent for the reception of such writings in evidence. This subject will be found discussed in sec. 508 et seq. in 3 Jones’ Commentaries on Evidence (Horwitz edition), from which it appears that to constitute writings and publications of this character evidence of the facts therein contained, it must appear that the records were kept or the publications made to some extent under the sanctity of law. As above stated, while we think there is good reason for the receipt of such publications in evidence, we find no precedent therefor, and we must hold that the reception of the directory in evidence was error.

While counsel for defendant moved for dismissal of the action at the close of the State’s evidence, which motion was denied, the action of the court in this respect is not assigned as error. The ground on which this motion was based was that the State had not proven the identity of the man about whom the remarks were made to be the same . man as Father Grosnick, the priest at Oconto Falls. While we are not called upon to discuss this matter, it seems proper for us to say that the position thus taken is untenable. If the defendant made the statements attributed to him by the witnesses for the State, he unequivocally charged a man by the name of Grosnick, who formerly resided at Manawa, to be the father of illegitimate children. The testimony of Father Grosnick establishes the fact that he was a resident of Manawa before he went to Oconto Falls, and that he was the only man of that name not alone in Manawa but in the vicinity of Manawa. To charge a man by the name of Grosnick who lived in Manawa to be the father of illegitimate children constitutes a slander of that man, and it matters not whether at the time of the slander he lived in Oconto Falls or some other place. There can be no doubt that the Grosnick of Manawa to whom Malone referred was the complaining witness in this action.

It is unfortunate that this action must again be tried, but such a result seems inevitable from our consideration of the case.

By the Court. — Judgment reversed, and cause remanded for a new trial.