Stanley v. Webb

This suit was instituted for the recovery of damages for the publication in the'Courier and Enquirer newspaper, of which the defendant is editor and proprietor, of an alleged libel against the plaintiff.

The defendant pleads that the publication was a true, fair and correct account of public judicial proceedings before a magis-' trate, and the plea contains the affidavit upon which the complaint against the plaintiff was founded, and it further avers that other proceedings were pending before the magistrate, growing out of a complaint made by the plaintiff The replication charges that the complaint was primary and original, and made ex parte, in the absence of the plaintiff, and is false and libellous; and the defendant demurs.

The question presented for our consideration is, whether this publication is privileged.

The question of privilege is one of great delicacy and importance, affecting as it does the independence of legislation, the impartial administration of justice, the proper discharge of off

It.is admitted as a general rule, that a full, fair and correct account of a trial in court is a privileged publication-, and this is the well established law of England and of this country. But “ if a party -is to be allowed,” says Chief-Justice Abbott, (Lewis v. Walters, 4 B. & A. 611,) “ to publish what passes in a court of justice, he must publish the whole case, and not merely state the-conclusion which he himself draws-from ihe-evidence;” and in Flint v. Pike, 4 B & C. 467, a plea that the supposéd libel was in substance a true account and report of- the trial was held bad. In Saunders v. Wills, 6 Bingham 213, a statement of the circumstances of'a trial, given as from- the counsel in the case, rvas held not such a report as is privileged — -and in Delegal v. Heghley, 3 Bingham, N. C. 950, Chief Justice Tindal says': It is an established principle upon which the privilege of publishing a report'of any judicial proceeding is admitted to rest, that such report -must be strictly confined"to -the-actual proceedings in court,-and must contain no defamatory- observations or comments from any quarter whatever, in addition to -what-forms strictly and-properly the legal proceedings.--' So-'it was said in the King v. Carlile, by Chief Justice Abbott; 3 B &-A. 167, “ There can be no doubt in the mind of the court, or of any person acquainted with the law of the country, that if, in the course of a trial, it becomes necessary fop the purposes of justice, that matters of a defamatory nature should be publicly read, it

In Thomas v. Croswell, 7 John. 272 , Spencer, J., says: “ there is not a dictum to be met with in the books that a man under pretence of publishing the proceedings of a court of justice, may discol'or and garble.the proceedings by his own comments and constructions, so as to effect the purpose of aspersing the character of those concerned.” In the case of Clement v. Lewis, 3 Brod. & Bing. 297, the heading of the articles was, “ shameful conduct of an attorney.” The defendant justified, on the ground that the alleged libel contained a faithful and true account of the several proceedings therein stated, had in the insolvent debtor’s court, and on some of the pleas, the jury found in favor of the defendant. But the court of King’s Bench held that the words at the head of the article formed no part of the proceedings in the debtor’s court, and on this point, the judgment, in-the exchequer chamber on error, was affirmed on the argument of the cause.

•In the case now before us, the heading of the article was “extorting money to hush up a complaint.” If the proceedings had taken place in court, on the trial of the case, and the witness had given the testimony substantially as stated in his affidavit, still that part of the publication would not have been privileged. But this was no trial. The publication in, question purports to give the substance of two complaints, made at different times, and on entirely different grounds; the latter complaint, made by the defendant in the first complaint against the plaintiff in this suit and a police officer, charging that they had offered, for a bribe, to have the first complaint dismissed; the plaintiff in this suit having been the prosecutor in the first complaint. The one complaint was no answer to the other. Each would be sustained, if sustained at all, on different evidence; and for aught that appears, if the charges were true, both parties must be con

"We now come to the most material and important question, whether the publication of such preliminary ex parte proceedings before a magistrate is privileged. Lord Hardwicke remarked, 2d Atk. 267, “ Nor is there any thing of more pernicious consequence than to prejudice the minds of the public against persons concerned' as parties in causes, before the cause, is finally heard;” and Lord Ellenborough, in an action for publishing an account of preliminary proceedings before a magistrate in King v. Fisher, 2 Campb. 563, says: “Jurors and judges are still but men y they cannot always control feeling excited by such inflammatory language. If they are exposed to be thus warped and misled, injustice must sometimes be done. Trials at law, fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. The benefit they produce is great and permanent, and the evil that arises from them is rare and incidental. . But these preliminary examinations have no such privilege. Their only tendency is to prejudge those whom the law.still presumes to be innocent, and to poison -the sources of justice. It is of infinite importance to us all, that whatever has a tendency to prevent a fair trial should be guarded against. Every one of us may be questioned in a court of law and called upon to defend his life and character. "We would then wish to meet a jury of our countrymen with unbiassed minds. But for this there can be no security, if such publications are permitted.”

In the great case of Duncan v. Thwaites, 3 B. & Cresswell, 556, this right was fully considered. The defendants, the proprietors of the London Morning Herald, were sued for a similar publication. They pleaded, amongst other things, that the supposed libels-were nothing more than fair, true, and, correct reports in the newspaper called the Morning Herald, of pro

I have thus run over a'few of-the prominent cases relative to privileged publications, and in doing so have preferred to quote the language of the decisions, as uttered by several of the distinguished men, who during the last half century have shed light and lustre on English jurisprudence. It is believed that no one, who will carefully examine the subject, can fail to perceive-

We are not aware that the question presented for our consideration has evér before arisen in this state, but the authorities and the arguments which sustain them, and which we have in part referred too, are too strong to be resisted, and we must give them our entire assent. It is our boast that we are governed by that just and salutary rule upon which security of life and character often depends — that every man is presumed innocent of crimes charged upon "him until he is proved guilty. But the circulation of charges founded on ex parte testimony, of statements made — often under excitement: — by .persons smarting under real or fancied wrongs,.may prejudice the public mind, and cause the judgment of conviction to be passed long before the day of trial has arrived. When that day of trial comes, the rule has been reversed, and the presumption of guilt has been substituted for the presumption of innocence. The chances of a fair and impartial trial are diminished. Suppose the charge to be entirely groundless. If every preliminary ex parte complaint which may be made before' a police magistrate, may, with entire impunity, be published and scattered broadcast over the land, then the character of the innocent who may be the victim of a conspiracy, or of charges proved afterwards to have arisen entirely from misapprehension, may be cloven down, without any malice on ■ the part of the publisher. • The refutation of slander in such cases generally follows its propagation at distant intervals, and brings often but an imperfect balm to wounds which have become festered and perhaps incurable.

It would be difficult to point out a complete remedy for the evil, which exists with us .as in England. ■ The law, which we consider well settled, and which we repeat and lay down in this case, that the publication of such preliminary ex parte proceedings is unauthorized and not privileged, if observed and enforced, would do something. A sound public opinioh would do more — -an opinion which should encourage that homely doctrine of diligent attention to one’s own affairs, and of thinking no evil of others except as a knowledge of such evil is forced upon us by business or by duty — an opinion which frowns upon those who pander to and nourish with daily food that morbid curiosity which finds its aliment in the frailties and vices of our race.

Demurrer overruled with costs.