People v. Fuller

141 Ill. App. 374

• Court: Appellate Court of Illinois
• Decided: May 20, 1908
• Docket: Gen. No. 4,878
• Status: Published

Opinion

Mr. Justice Dibell

delivered the opinion of the court.

1. It is argued that the publication set out in the indictment does not charge Merriman with a criminal offense; that “filch” does not necessarily import a crime, and therefore it is not libelous per se; that the indictment should have charged whether that word was used with an innocent or criminal meaning, and that in the absence of such an allegation the court must construe the language in the harmless sense, and should hold that the pleader only intended to charge that it was used in an innocent sense. It is the established rule in this state that words brought into question in an action for slander or libel are to be taken in the sense which persons of common and reasonable understanding would ascribe to them; that is, in their ordinary or common acceptation. Nelson v. Borchenius, 52 Ill. 236; Barnes v. Harmon, 71 Ill. 609; Ransom v. McCurley, 140 Ill. 626. This doctrine has been followed by the Appellate Courts frequently, as ‘ex-ampies of which we cite Prussing v. Jackson, 85 Ill. App. 324, 332, and Harkness v. Chicago Daily News Co., 102 Ill. App. 162. What then is the common and ordinary meaning attributed to the word “filch”? There is an old case in Croke’s Elizabeth which holds that the words “a common filcher” are not actionable per se, and that authority is noted in the text books. Nevertheless, the English dictionaries show that the primary and ordinary meaning of the word is to steal; especially in a small, sly, underhanded manner; to pilfer. Roget’s Thesaurus of English Words gives as the chief synonyms of filch: “steal, thieve, rob, purloin, pilfer. ’ ’ The Standard Dictionary defines ‘ ‘ filch, ’ ’ “to steal, especially slyly and in small amounts; to pilfer.” For synonyms, it refers to the word steal, and gives these synonyms of “steal:” “abstract, common larceny, common theft, embezzle, extort, filch, pilfer, pillage, plunder, purloin, rob, swindle.” In the same connection it says, “the word 'filch is ordinarily applied to things of little value, but may apply to the most precious.” The idea of theft, of stealing, is in the word as commonly used. It is true that one dictionary gives as an incidental or remote meaning, “to take from another by a violation of trust or good faith.” That however is not the direct or usual acceptation of the term. It is argued that if it could ever have such a meaning, not implying a crime, then it is not actionable per se, and the intent to charge larceny should have been averred. We do not admit the soundness of this position, as applied to a case where the meaning which does not include a crime is not the natural and obvious meaning of the word as used by persons of ordinary understanding. If such a principle were applied, few words would be held actionable per se. We suggest two common examples. The word “steal” is given in the dictionaries not only in its chief meaning, “to-take and carry away feloniously, as the personal goods of another,” but also in at least three other meanings which do not involve the idea of crime. “Thief” has a secondary or figurative meaning which has no relation to crime. Yet it is clear that to call a man a thief, or to accuse him of stealing, is to use language actionable per se. The reason is that the common and ordinary acceptation and use of those words is in a sense embodying crime. The same suggestions apply to the word “filch”. In common use and acceptation it includes the idea of stealing, adding thereto the sense of slyness, and sometimes by taking small things. We are of opinion that it is not deprived of its ordinary meaning of a crime by using it in connection with the word “illegal” or with “large sums”. Our statute defines libel as, “A malicious defamation, expressed either by printing or by signs or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby expose him to public hatred, contempt, ridicule or financial injury.” We are of opinion that the averments of this indictment are sufficient under said statute, and under Clay v. People, 86 Ill. 147, Crowe v. People, 92 Ill. 231, and People v. Seeley, 139 Calif. 118. The indictment shows the heading first above stated as given in large letters, but that does not fully show the appearance at the head of the article, originals of which are in the record before us. The word “money” and the word “taken” at the head of said article are in very heavy black type, each letter being about an inch and three-eighths in length and from half an inch to three quarters of an inch in width; and the words “illegally filched” and the other words in said heading are about half an inch in height and the letters of proportionate width. The heading, containing the charge that Merrima.n had “filched” large sums of money, was therefore made very prominent and was obviously intended to attract special attention.

2. Section 179 of the Criminal Code enacts: “In all prosecutions for libel, the truth, when published with good motives, and for justifiable ends, shall be a sufficient defense.” So also reads section 4 of article 2 of the Constitution. It is contended that the record establishes such a defense. On the contrary, the record shows nothing to justify the allegation that Merriman filched or stole any money. The part of the article containing the most serious libel was therefore untrue. An examination of the record also shows that as to the moneys referred to in that part of the article directed against Merriman, there was no warrant for saying that there was any illegality in connection therewith. This indictment does not involve the truth or falsity of the charges against Sterling, and we therefore do not discuss them. We have already set out in the statement preceding this opinion that part of the article which enumerated the sums which Merriman was therein charged with having illegally drawn from the public funds amounting in all to $802.30. The proof shows that nearly all of said sum of $656.43 said to have been illegally taken by Merriman in 1903 from the county treasury, was paid by him for the publication of the assessment roll for that year. Section 29 of the act of 1898 for the assessment of property requires the county treasurer as ex-officio supervisor of assessments to cause a full and complete list of the assessments by townships to be published in some public newspaper in the county, and that where there is published in a township one or more newspapers of general circulation, the list for such township shall be published in one of the newspapers published in said township; and further, that “the expense of such printing and publication shall be paid out of the county treasury.” There were a number of such newspapers published in the different townships of Lee county, and Merriman distributed the publication among them as the law required. As he was commanded by law to cause the publication to be made, and did cause it to be made, and as the expense therefor was by law directed to be paid out of the county treasury, it cannot be said that Merriman, the county treasurer and county assessor and supervisor of assessments, paid this money illegally, even though he might have laid the bills before the county board prior to paying them.

There was embraced in this total of $802.30 alleged to have been illegally drawn by Merriman a small sum each year for extra clerk hire. The proof showed that before Merriman was elected to the office of county treasurer the county board adopted the following recommendations by its fees and salaries committee, to wit: ‘ ‘ That the county treasurer be allowed to employ extra clerk hire, if necessary, on account of the work imposed on the office of the said treasurer by his being ex-officio supervisor of assessments.” That order was never afterwards rescinded. There was uncontradicted proof that with the force in Merriman’s office it was impossible to get out the assessment list for publication in the different pages in the different townships within the time required by law. It appears to be the established construction of the constitution and the law in this state that where the compensation of a county officer and his clerk hire and the expenses of his office have been fixed by the county board in one gross sum before he takes the office, that allowance cannot be in any respect changed during the term of office of such officer. Brissenden v. County of Clay, 161 Ill. 216; Coles County v. Messer, 195 Ill. 540. Where, however, the compensation is fixed at one sum, and the clerk hire, or the clerk hire and other expenses, are fixed separately therefrom, in such case, while the compensation cannot be changed during the term, the county board has power to change the 'allowance for clerk hire and for other expenses. The county board cannot be compelled to make a change, and if it has not made a change, and refused to approve further expense made by the officer, he cannot collect therefor from the county. If the officer conceives the expense to be necessary, and incurs it without authority, he does so in the first instance at his own risk and expense. But if the county board afterwards approves the expenditure, it then becomes a valid county charge. In County of LaSalle v. Milligan, 143 Ill. 321, 330, the court said: ‘ ‘ The amount allowed for deputy and clerk hire and expenses of the office is largely in the discretion of the county board, and might be changed at any time as in its judgment the exigency of the public service demanded.” In Coles County v. Messer, supra, the court on page 545, said: “If the amounts are fixed separately, the compensation, aside from the expenses, cannot be changed during the official term; but the expenses may be changed from time to time by the county board as the necessities of the office may change.” In Whitmore v. People, 227 Ill. 453, 469, the court said: ‘ ‘ The cases above cited hold that when an amount for clerk hire and expenses has been fixed by the county board, the officer is not entitled to receive from the county anything for money actually expended for clerk hire in excess of the amount-allowed him by the county board for that purpose.” The court then quotes at length from Daggett v. Ford County, 99 Ill. 334, including the following language: “The power of fixing the amount of necessary clerk hire, etc., is devolved by the constitution on the county board as a fair and impartial tribunal, and it is to be supposed that they will perform the duty in good faith as it rests upon them under the constitution. Should it be found at any time that the board had committed an error in judgment, and not allowed an amount sufficient for necessary clerk hire, etc., the construction which we have heretofore adopted that the amount once fixed for necessary clerk hire, etc., when it is fixed separate from the allowance for personal services, is subject to be changed from time to time during the term of office as the board may see fit, will enable the board to afford any suitable relief in this regard, and it may be expected that this will be sufficient for the avoidance of any serious injustice being done to officers in any underestimating by the county board of the necessary expenses of their offices.” This construction of the constitution is carried out in the statute. Section 51 of chapter 53 of the Revised Statutes, relating to fees and salaries, requires each county officer who shall be paid in whole or in part by fees “to keep an account of the expenditures made by him on account of clerk hire, stationery, fuel and other expenses;” and make report in June and December to the county board; and the county board is required to carefully audit and examine every such report and ascertain the balance, if any, held by such officer, “after such expenses as said board may approve or allow,” and his salary, etc., have been deducted from the gross amount, and shall order the balance paid into the county treasury, etc. It will thus be seen that the statute contemplates that the county officer will make these expenditures before they are presented to the board for approval; but that if the board fails to approve and allow any expense which he has made outside of the sum previously fixed by the county board, it will be at his own risk and expense. The county board approved of the sum expended by Merriman for clerk hire, and it was therefore a legal and valid county charge. There was also a charge for the rent of a typewriter, and all the rest of the items entering into said sum of $802.30, alleged to have been illegally drawn, were small expenditures during the years 1903, 1904 and 1905, which the board approved and allowed. It is obvious that there are expenses in such an office, such as fuel, lights, pens, penholders, ink, paper and the various instruments and blanks necessary or proper for the conduct of the public business, that cannot always be fully foreseen and properly estimated in advance by the county board. The authorities above cited and the statute above referred to, confer full authority upon the county board to approve and allow expenditures for such matters in excess of the amount originally fixed by the board. The board approved each of these items, and they were all therefore valid county charges; and the accusation made against Merriman in the publication complained of that he had illegally taken money belonging to the county is not sustained.

But again, not only was the charge of filching and the charge of paying county money illegally not sustained, but further the truth, to be a sufficient defense, under the constitutional provision and statute above referred to, must be published with good motives. There was proof of statements made by plaintiff in error, both before and after this publication, which strongly tended to show that his motives in making this publication against Merriman were malicious. Plaintiff in error denied making these statements; but we must assume here that the jury believed the testimony that he made them. The publication complained of stated that these alleged illegal expenditures would appear from the records of the county board, but it failed to state the important circumstances that the county board had approved and allowed all these expenditures; and this omission had a tendency to impeach the motives with which the publication was made.

3. It is contended that plaintiff in error is not responsible for this article as published, and especially that he is not responsible for the libelous heading. The newspaper in which this publication was made, named “T. W. and E. C. Fuller” as the publishers, and plaintiff in error is the E. C. Puller there named. There was proof that he was editor in chief and half owner. There was proof by plaintiff in error that the paper was published by the Dixon Sun Company, of which company plaintiff in error was president and a director. He wrote the editorial part of the paper, and assisted in directing its policy, and he wrote the body of the article. H. E. Ward was the managing editor, and wrote the head lines of this article. Plaintiff in error gave the article to Ward for the purpose of having him write the headlines. After the article was printed, on October 31, 1906, plaintiff in error saw it, with the headings, and he directed this and other articles to be kept in type and printed a few days later as an insert; and when the postmaster would not accept the newspaper with those inserts, plaintiff in error took part in mailing and distributing over the county a large number of sheets containing this article with this heading. He himself mailed a part of the sheets containing this article. Proof of the second publication was competent as tending to show malice; and indeed the people were not obliged to rely upon the first publication, but could prove and rely for conviction upon the publication of the article at either time. The responsibility of plaintiff in error for the publication of the entire article, including the headlines, is fully established.

4. It is argued that the court erred in refusing to allow plaintiff in error to prove that the county board allowed Merriman a salary of $500 per year for his services as supervisor of assessments, and that he received that salary. This allowance was illegal. Foote v. Lake Co., 206 Ill. 185; Parker v. County of Richland, 214 Ill. 165. But this was not the illegal action to which this publication related. The article did not charge that Merriman had illegally received this salary as supervisor of assessments, but on the contrary it stated that that allowance to Merriman was lawful. Plaintiff in error was indicted for publishing of Merriman that he had “filched” certain specific sums. It was not a defense to show that Merriman had illegally received other money. But it is argued that this proof was competent under the second count, which only set out the headlines of the article. The whole article was in evidence, and it showed to what the headlines referred, and showed that they did not refer to the salary of supervisor of assessments. The proof was properly rejected.

5. Complaint is made of the ruling of the court upon the instructions. The court modified the fourteentk instruction -requested by plaintiff in error, by inserting the word “material” before the word “allegation”. The use of the word “material” in this connection seems not to have been erroneous or harmful under the rule laid down in Harvey v. C. & A. Ry. Co., 221 Ill. 242. The jury was very fully instructed, and the instructions clearly showed what allegations were material; and the jury could not have been misled by the use of that word in that instruction. We have examined the other objections to the instructions, and conclude that they are not well founded. We find no reversible error in the record. The proof appears to establish the guilt of plaintiff in error and the punishment is mild.

The judgment is therefore affirmed.

Affirmed.