Commonwealth v. Scouton

20 Pa. Super. 503, 1902 Pa. Super. LEXIS 269

Opinion

Opinion by

Rice, P. J.,

1. In Jones’s Estate, 27 Pa. 336, where a judgment was entered against “A. Jones,” whose name was “Abel Jones,” and it was proved that he was well known by the abbreviated designation, and that he uniformly wrote his signature in that way, and that there was no other person in the county for whose name it would answer, it was held that, the lien was well entered and.was entitled to preference over one subsequently entered against “Abel Jones.” In Laflin & Rand Co. v. Steytler, 146 Pa. 434, it was held that the provision of the Act of June 2, 1874, P. L. 271, requiring that the statement to be signed and acknowledged by persons desiring to form a limited partnership association shall “ set forth the full names of such persons,” is sufficiently complied with when the names with which the statement is signed and acknowledged are the names habitually used by the persons in business, and those by which they are generally known in the community. “ The object aimed at was the identification of the person, and the requirement of his full name had nothing further in view. . . . A name, therefore, is the title used for the identification of an individual, and the intent of its requirement in full is certainty of such identification. The full name, therefore, is no more than the whole of such title, as it is used by himself and his neighbors for such purpose.” The statutes construed in these two cases are not less imperative in requiring the full name to be set forth than is the 88th section of the Act of April 14, 1834, P. L. 356, which provides that in filling the jury wheel “ the name, surname and addition or occupation and place of abode of each one of the persons selected ” shall be written upon tbe slips to be placed in the wheel. The object aimed at by the legislature in each instance being the identi fication of the person, when this is accomplished the requirement of the statute is fulfilled. In the present casé there was neither allegation nor proof that the names by which the jurors were designated did not sufficiently identify them. Nor do we think it was to be presumed that they were not the names used by themselves and their neighbors for that purpose. We conclude, therefore, that the court committed no error in overruling the motion to quash the array.

2. It is urged in support of the second assignment of error that a certificate setting forth the cause of disqualification or disability of the president judge of the district and the call on the president judge of the 29th district to hold the regular term or to try the cause, should have been filed of record, and there being no such certificate the latter judge had no right, power, jurisdiction or authority to try the cause. True the certificate filed does not affirmatively set forth that the president judge of the district was disqualified or disabled within the meaning of the act of 1834, the act of 1856, or the act of 1860, nor that in his opinion the proper dispatch of the public business required that he should have the assistance of another judge at that term, as provided in the act of 1887. But, giving .the certificate a reasonable intendment, the record does show that the president judge of the 29th district presided at the trial pursuant to a call made by the former. Presumably, there was a legal reason for the call: Commonwealth v. Bell, 4 Pa. Superior Ct. 187.

3. The third assignment of error does not appear to be based on any bill of exceptions; but aside from that, it is well settled that a motion for continuance is addressed to the sound discretion of the court, and except in clear cases of abuse of discretion the refusal of the motion is not assignable for error, even if excepted to at the time. We find nothing in the evidence adduced in support of the motion to take this case out of the general rule. See Commonweath v. Dietrich, 7 Pa. Superior Ct. 515 ; Commonwealth v. Craig, 19 Pa. Superior Ct. 81.

4. The fourth, fifth, sixth, seventh, eighth, eleventh and fourteenth assignments relate to the same matter, and may be considered together. A witness named Bovee, called by the commonwealth, testified that in a conversation which took place between him and the defendant, the latter made certain dec larations clearly showing express malice on the part of the defendant. The defendant called a witness named Babcock, who testified that he was present on the occasion referred to and that the defendant made no such declarations at that time. This was the full extent of his testimony in chief. Upon cross-examination,, the commonwealth’s counsel were permitted to ask this witness whether or not he had a conversation with the defendant in which the latter declared that he was going to ruin the prosecutor. The witness having answered in the negative he was then asked in spite of the defendant’s objection, whether he, the witness, had not stated to other parties, naming them, that the defendant had made such declarations to him. This cross-examination was clearly incompetent and should have been excluded, because it did not relate to what was said on the occasion referred to in the examination in chief, and did not tend to show interest or bias. If, however, it had ended here, it would have been harmless, because the answers were not prejudicial to the defendant and no attempt was made to contradict the witness in the particulars thus far referred to. But it did not end here. In the course of the cross-examination the commonwealth’s counsel, under objection and exception, were permitted to ask the witness whether or not the defendant had told him that the prosecutor and his associate were taking more money out of the treasury than they were entitled to get. The witness answered in the affirmative. The materiality of this testimony is not apparent; certainly it was not relevant to any matter to which the witness had testified in chief, and the objection should have been sustained for that reason. This error, likewise, might have been harmless, had it not been followed by an attempt to contradict the witness in this collateral matter. But in rebuttal, and for the avowed purpose of contradicting the witness, an extract from the stenographer’s report of his testimony given on a former trial was read, in which the witness admitted that he had told Judge Yonkin, that he had seen it stated in the defendant’s newspaper that the prosecutor and his associate were taking more money out of the treasury than they were entitled to, but denied that he had stated to Judge Yonkin that the defendant had told him so. This was in no sense contradictory of any testimony the witness gave on the present trial, and should have been excluded for that reason, even if his testimony on the former trial had been properly proved, as to which latter objection, see the recent decision of the Supreme Court in Edwards v. Gimbel, 202 Pa. 30. Collateral matters should not be brought out on cross-examination, merely for the purpose of laying ground for subsequent contradiction to affect the credibility of the witness. But a considerable latitude must be allowed to the discretion of the trial court in the matter of cross-examinatiou. The appellate court will not reverse unless convinced of clear error in the exercise of this discretion, which may have, worked injury to the party complaining. Standing alone the rulings upon the cross-examination of the witness and the admission of the excerpt from the testimony given on the former trial, while erroneous, might possibly be regarded as harmless, because, as the counsel for the commonwealth now frankly concede, this latter testimony did not contradict the testimony given by him on the second trial in any particular. But the difficulty in the way of dismissing the assignments upon this ground is, that much of the objectionable cross-examination was for the express purpose of laying ground for contradicting the witness, that the testimony given by him upon the former trial was offered and admitted for the purpose of contradicting him as to these collateral matters, and that in the instructions complained of in the fourteenth assignment the court permitted the jury to find that the attempt thus to contradict the witness, and thereby affect his credibility, had been successful. Viewing the rulings under discussion in the light of these instructions, we are unable to conclude that the error was harmless. Therefore these assignments are sustained.

5. In the first count of the indictment the defendant was charged with the publication of a libelous cartoon in a newspaper owned and conducted by him, which imported and conveyed the meaning that Conrad Kraus, an associate judge of the county of Sullivan, “ was wanting in integrity in the performance of his duties as said associate judge and that he had wrongfully and fraudulently sworn' and vouched to the auditor general of the said commonwealth to having traveled more miles than he rightfully should have done and thereby secured from the state treasury a greater compensation as associate judge than he was justly and rightfully entitled to, and meaning, illus trating and importing by the said picture that the office of associate judge was being used by the said Conrad Kraus .... for and with the fraudulent and dishonest purpose of unjust and illegal gain.” That the cartoon conveyed, and was intended to convey the meaning thus ascribed to it in the indictment, namely, that the prosecutor was guilty of official malfeasance in drawing greater compensation than he was legally entitled to, and of want of integrity in so doing, is not questioned. Judging from the evidence and the points submitted, the defense was of a twofold nature ; first, that the publication was made after due investigation and upon probable cause for belief that the charge was true; second, that it was true. In support of the latter branch of his defense the defendant showed, that Judge Kraus lived about eight miles from the county seat, and drew for salary and mileage for the year ending November 80, 1897, the sum of $831.85, for the succeeding year the sum of $901.15, and for the year following that, the sum of $915.91, and that his immediate predecessors in office, although living farther from the county seat and attending to all the duties of the office, did not draw more than $400 in any one year. He also gave evidence tending to show that the business coming before the court had fallen off, and could be transacted, and was transacted, in twenty-five or thirty days in each year. We think, therefore, that the learned judge fell into error in qualifying his answer to the defendant’s tenth point (nineteenth assignment) by saying that “ there is no actual evidence in this case that Judge Kraus drew more in any one year from the public treasury than the sum to which he was entitled.” This was not an immaterial error as will be seen later.

6. Unquestionably the matter charged in the indictment was prima facie libelous ; it referred to the person named in the indictment as libeled; and its publication was admitted. These essentials of the offense charged in the indictment being established, a prima facie case for the commonwealth was made out. In other words, the commonwealth was not required, in its case in chief, to furnish other proof of malice. If its case had rested here, the defendant would have been put to proof that it was neither negligently nor maliciously made, in order to obtain the immunity from criminal responsibility guaranteed by the constitution. See Commonwealth v. Swallow, 8 Pa. Superior , and the cases there cited; also Commonwealth v. Rovnianek, 12 Pa. Superior Ct. 86. But the 1st section of the Act of July 1, 1897, P. L. 204, which was in force when this case was tried, provided: “ That in all criminal prosecutions or indictments for libel, if the matter charged as libelous is in the opinion of the court proper for public information, the truth may be given in evidence.” At the outset of his charge the learned judge undertook to instruct the jury as to “ the burden which the defendant has assumed when he attempts to establish his innocence because of such a defense as this.” This preliminary statement was followed by instructions which are applicable and substantially correct where there is no proof of the truth of the publication. But as the evidence was sufficient to carry that question to the jury, the defendant was entitled to instructions applicable to the case in the event of a finding by the jury that the matter charged in the indictment as libelous was true. In view of the provision of the act of 1897 above quoted, the principle was applicable that where a publication related to the official conduct of a public officer and was proper for public information and was true, the defendant is not required to prove more’in order to establish a defense unless there be something beyond the mere fact of publication to show malice. With this qualification the instructions complained of in the twelfth, thirteenth, fifteenth, sixteenth and seventeenth assignments would have furnished no ground for reversal. But in the affirmance of his sixth and seventh points the defendant was given the benefit of instruction, which substantially recognized the principle, and were as favorable as he had a right to ask. We therefore do not reverse upon these assignments.

7. It is settled by the decisions that the privilege may be lost by the manner of the publication ; the evidence of malice may be intrinsic, from the style and tone of the article ” : Conroy v. Pittsburg Times, 139 Pa. 334 ; Commonwealth v. Little, 12 Pa. Superior Ct. 636. “The official action of public officers is at all times a proper subject for inquiry by the citizen and for information to the public. But even when investigation may reveal conduct that justly deserves censure, a publication on the subject is not to be made a vehicle for unfounded charges or malicious detraction. The truth is not to be distorted in order to furnish a basis for denunciation, or invective. Dereliction in public duty is not to be redressed by calumny: ” Smith, J., in Commonwealth v. Swallow, supra at p. 605. The learned judge committed no error in adverting to this qualifying principle in his answer to the defendant’s fourth point.

8. In his ninth point the defendant asked the court to charge that the privilege attaching to such a publication as this is not destroyed by the fact “ that the prosecutor and defendant were not on terms of friendly intimacy.” The correctness of this as' an abstract legal proposition cannot be questioned. That fact alone would not destroy the privilege. To hold otherwise would be to make proof of unfriendly relations, without more, presumptive evidence of malice, even though the defendant was not moved by them in publishing the truth with regard to the official conduct of a public officer or with regard to other matter proper for public information and investigation. In affirming the point the court correctly said that if the publication was a proper one, and legitimate criticism of the prosecutor, the feeling existing between him and the defendant should not be taken into consideration; but this instruction was coupled with the remark, “yet in determining what the character of the publication really was, it is almost impossible for you to avoid taking into consideration, to some extent, the feeling between these two parties.” This qualification was not called for by anything suggested in the point, but had a tendency to divert the attention of the jury from the consideration of the legal principle to which the point was intended to call specific attention. We think the point should have been affirmed without qualification.

9. The court committed no error in rejecting the offer which is quoted in the tenth assignment. The court properly held that it did not appear by the offer, even as amended, that the Avitness was qualified to express an.opinion as to the number of days in each year that would be required for the transaction of the legal business coming before the court.

10. We are not prepared to say that where the truth of an alleged libelous publication is in issue, the admission of its truth by the person alleged to be libeled would not be competent evidence in support of the affirmative of that issue. But we are not convinced that the declaration alleged to have been

made to Wallace Norton could properly be construed as an admission on the part of the prosecutor that he had drawn, or intended to draw, more money out of the treasury than he was legally entitled to. Therefore, we do not sustain the ninth assignment.

J udgment reversed and venire facias de novo awarded.