Commonwealth v. Little

Opinion by

Beaveb, J.,

The appellant, who was indicted with a codefendant for libel, in the court below, was convicted upon an indictment which is printed in the paper-b'ook of the appellee, charging a libel based upon two newspaper articles, the one an editorial written by himself, and the other a communication which he received and directed to be published. Each of these newspaper articles is easily and naturally divisible into two distinct parts. The defendant himself, in his cross-examination, seems to admit this, and his admission would seem to relieve us of the apparent difficulties which are presented by the assignments of error. We quote from the defendant’s cross-examination as follows:

“ Q. Did you print for the benefit of the public and for the purpose of purifying the politics of this community these words, among others: ‘ Col. Ripple, the man who struts around as an old soldier, although he never fought in the war — tiie man who was captain of the firing squad that shot down the strikers on Lackawanna avenue twenty-two years ago, but was absent in a cellar or somewhere else when the fighting was in progress— Col. Ripple, the man who, as Connellism’s chief director, has done more to debauch politics in this county than any one else, and the man who, in spite of the fact that he holds office as a republican, has done all that lay in his'power to defeat the party he benefits by — this man, who is literally steeped in political corruption and blackest hypocrisy, has we understand given orders to the editor of the Scranton Tribune that he is to fight us to the bitter end ? ’ A. The part referring— Q. Answer my question. A. I can’t answer it as a whole. It splits itself naturally into two parts. Q. Well, answer it your own way then. A. The part referring to the politics, yes, and the introduction as a description of the man as I understand he existed. Q. The part referring to the politics, yes, but the other part, no ? A. It describes the man, as I understood it. Q. You describe him as you understood him? A. Yes, sir. Q. Did you print those words for the purpose of purifying the politics of the community? You say the part referring to the politics, yes, but the other part, no ? A. Well, you can put it that way.”

Admitting all that is claimed by the defendant’s counsel as to the privileged character of the communications contained in the indictment under the 7th section of the 1st article of the constitution, which provides that “No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to" the satisfaction of the jury; ” and that the portions of these articles which deal with facts may be privileged, it is impossible to see how the parts which the defendant says are desciiptive of the man can be other than libelous. Giving the largest possible latitude to the defendant’s contention and admitting that, because the prosecutor was postmaster of the city of Scranton and there was at the time of the publication of the libel under discussion in the newspapers and under consideration by the people a change in the method of conducting their primary elections, and that the prosecutor was prominent in political circles in the community and that, therefore, everything relating to his political methods in times past was the proper subject of discussion and comment, so that the public might be advised of his character as a political leader, and admitting that the articles alleged to be libelous were made upon a proper occasion, from a proper motive and based upon reasonable or probable cause, it can scarcely be alleged and has not been claimed that they were made in a proper manner; but even in a civil case, as was held in Conroy v. The Times, 139 Pa. 334, “if the manner be improper, the privilege is lost.” It is not necessary to characterize the manner in which whatever of fact contained in both the editorial and the communication referred to is conveyed to the public. The most cashal observer will be impressed with the motive of these publications. As the defendant himself observed in the cross-examination heretofore quoted, “ They split themselves naturally into two parts,” the one part of fact and the other of exuberant fancy or rather vituperation. The public teacher who, in the effort to reform abuses existing in the community, attempts to give to the public the facts in relation to the life, character or conduct of public men must do so in a manner befitting the purpose which he has in mind and the object to be attained. It may be admitted that the public journalist of to-day can have no more lofty purpose "and perform no higher duty to the public than to point out in a manner befitting the dignity of the high purpose which he has in view, the political corruptions of the day and the men who practice them; but, when such a task is undertaken, it is to be performed in such a manner as to bring the teacher clearly within the privilege guaranteed to him under the constitution. There has been and cap be no pretense that either of the communications, upon which the indictment in this case was founded, was in effect or was intended to be a proper presentation of a grave charge against a citizen of the commonwealth, whose conduct as a public man and an office holder was the proper subject “ for public investigation or information.” What is complained of, therefore, in the third, fourth, fifth, sixth and seventh assignments of error was clearly justified by the character of the publications contained in the indictment.

The first and second assignments of error, upon their face, seem to present a question of some difficulty, but the answer thereto is. twofold: (1) The testimony offered therein could not in any way tend to justify the manner of the publications, even if all else in them taken together could be considered as bringing them within the category of privileged communications, but (2) all the facts offered to be proved in the offers which were rejected were afterwards admitted and the fullest latitude given to the defendant to prove the truth of the facts alleged in both of the articles. It is true that in the third offer, which was admitted, the purpose of the offer differed from those contained in the offers rejected, but the purpose was in no way controlled, so far as the record shows, by the court after the testimony was in, and the defendant would seem to have had all the benefit of the testimony which he could have had, if it had been received under the offers, the rejection of which is complained of in the first and second assignments of error.

The answer to the defendant’s third point might have been different, if the publications complained of had consisted merely of statements of fact properly communicated to the public; but, under the circumstances, and in view of the character of these publications, as already pointed out, we can see no error in the refusal of this point.

The admission of the fact as to the citizenship of the defendant, complained of in the ninth assignment of error, may not have been technically correct. We do not see what relevancy that fact had to the main issue; nor, on the other hand, do we see how the defendant was harmed thereby. There seems to, have been some latitude allowed both on the part of the prosecution and the defense in regard to this subject, for the defendant, apparently as an offset to the fact that he was not a citizen, was allowed to prove that he had two children who were citizens. We do not think this constitutes in the present case reversible error.

The case was fairly, fully and ably tried. The charge of the court was entirely adequate. We have given careful consideration to all of the testimony and to the whole case as presented, both by the appellant and the appellee. The appellant’s paper-book, it may be remarked, omitted some of the exhibits which were in evidence, hut that of the appellee seems to supply the deficiencies existing therein and we have, therefore, been able to reach a clear understanding of the entire case and, upon a careful consideration of it, there is no ground, so far as we can see, in any of the assignments of error for a reversal of the judgment of the court below. They are, therefore, all overruled and the judgment is affirmed.