Commonwealth v. Graffius

Opinion by

Williams, J.,

Graffius was found guilty of libel and sentenced to pay a fine of $100 and serve four months in jail. He appeals from, that judgment.

In 1916, J. D. Hicks was the candidate of the Republican “Organization,” and H. A. Davis, the candidate of the “Antisaloon” or “Temperance” wing of the party, for State committeeman. The latter candidate was a member of the Blair County bar, and had been a leader of the temperance element for many years. Before the primaries in May, defendant presented a libelous article, attacking Davis’ character, to Hicks, and later to his son, which he asked them to use or publish. They refused. Later he presented a slightly modified article to C. M. Kelly, managing editor of the Altoona-Times, saying he might use it, or part of it, for publication. It was not, however, published, and Kelly presented it to Davis to affirm or deny. Davis thereupon had defendant arrested. The latter, upon hearing that he was to be tried by President Judge Bailey, specially presiding, demanded that he be tried by President Judge Baldrige. This request was refused.

The article complained of was as follows: “H. A. Davis, Blair County candidate for the State Republican Committee. Lincoln once said: ‘You can fool some of the people all the time, and all the people some of the time, but you cannot fool all the people all the time.’ It might have been well for Mr. Davis to refer to these lines before announcing himself as a candidate for the State Republican Committee. A Dr. Jekyll and Mr. Hyde type of man may play his dual role successfully for years; but sooner or later, evil will out, and a man, of apparently irreproachable character, stands revealed in his true character. Mr. Voter: What manner of man can represent the temperance cause and people, act as a leader in a Christian church, and drink beer in a well known hotel, in the City of Altoona? Is it seemly or consistent for an apostle of temperance, and a church leader, to handle or indulge in a liquor of any kind? According to our way of thinking, only a Judas Iscariot can or would represent the temperance and church people, of this or any other district, and, at the same time, receive money from brewers and hotel keepers; to incidentally lose remonstrances, from not only one but three wards, and to be loud and bitter in the denunciation of one hotel keeper in Altoona, immediately preceding the last license court, and, upon receipt of, say, one thousand thanks, shut up like a clam. ‘Truly, a well paid clam.’ Mr. Voter: Will a Dr. Jekyll and Mr. Hyde, and a Judas Iscariot, representing the people of the county on the State committee, respect your wishes and his pledges, or will he serve you in the future as he has in the past, by selling you out? Is it not a reasonable conjecture that money will outweigh the plank, to be placed in the Eepublican platform? To sink rather than float it.”

The first assignment raises the question whether defendant had a constitutional right to be tried by a particular judge. We think not. His right was to' be tried by a duly authorized court. Courts of law are impersonal, and when speaking of authority to try cases we mean the court, and not any particular judge: Com. v. Dunleavy, 16 Pa. Superior Ct. 380; Com. v. Miller, 63 Pa. Superior Ct. 548. Under the Act of April 27, 1911, P. L. 101, there can be no doubt of Judge Bailey’s right to preside at defendant’s trial: Com. v. Johnson, 236 Pa. 412. Appellant, in his argument, entirely overlooks this statute and assumes that Judge Baldbige refused to try the case because of some disqualification. Presumably Judge Bailey had been called in pursuance of the acts of assembly: Com. v. Bell, 4 Pa. Superior Ct. 187.

The article complained of imputed dishonorable and dishonest action to the complainant in his professional conduct ás well as his private life, which is libel per se: Montgomery v. New Era Printing Co., 229 Pa. 165. The court was justified ip expressing its opinion, upon its libelous character: Com. v. Little, 12 Pa. Superior Ct. 636.

The objections to the charge are without merit. The defendant contends that the article was privileged because Davis was a candidate for public office. The court told the jury that the occasion and subject-matter were proper, and left to them the questions whether the manner was proper, the publication without malice, and based upon reasonable grounds. The essentials of the offense were thus left to the jury. The burden of proving want of malice rested upon the defendant, it appearing that the article was libelous: Montgomery v. New Era Printing Co., supra. There was no legal proof that the statements in the article were true. The defendant testified that he depended upon street rumors, but these are not sufficient to negative the presumed malice, unless they are such as would convince a reasonably prudent man: McGeary v. Leader Pub. Co., 52 Pa. Superior Ct. 35. Whether or not there was probable cause was a question for the jury, which, from the language used, might have found that the publication was malicious.

There was no error in the court’s answers to defendant’s points. The fourth was correct so far as it went, but failed to state an important qualification, viz: that if the-jury found the street rumors would have convinced a reasonable man, the defendant was not negligent. With the answer to the fifth, it was a complete statement of the law. The sixth point was properly refused. After a prima facie libel is made out, the defendant must disprove malice. The' seventh point was defective in that it made the defendant’s belief the criterion of probable cause. The eighth point interjected irrelevant matters which the court properly refused to submit to the jury. The ninth point, as qualified, was more favorable than defendant was entitled to expect.

The judgment is affirmed and the record remitted to the court below for the purpose of execution; and to that end it is ordered that the defendant appear in that court at such time as he may be there called, and that he be by that court committed until he has complied with his sentence, or any part thereof which is still unperformed.