Tanner v. Embree

ALLEN, P. J.

Appeal by defendants from a judgment in favor of plaintiff, and from an order denying a new trial.

The action was sought to be maintained by plaintiff on account of certain false and libelous publications made, or caused to be made, by defendants of and concerning plaintiff. The trial court finds, and there is evidence warranting the same, that plaintiff at and before the publication of the matter complained of was a duly appointed and qualified constable of the judicial township of San Jacinto, Riverside county, and was the president of the board of trustees of the city of San Jacinto, and was at all of said times a candidate for re-election to the office of constable of said judicial township; that the defendants in an issue of a certain newspaper, called the “San Jacinto Register,” printed and published by them, on Thursday, the first day of November, 1906, printed and published of and concerning plaintiff the following, among other things: “This man [referring to plaintiff], together with those trustees who appointed him, have winked at the prostitute dens and the gambling dens, and the street brawls, and have'had nothing to-say, or nothing to

do;

but the moment the matter is agitated by the citizens of our town, they rise up with indignation; they stand in the way of the movement and line themselves with the law-breaking element of our town. Now, as to this man,. Tanner, ... it so happens that he holds an .office of great importance just now. He is constable for this township. He says that it is ábsolutely useless to convict anybody of illegally selling liquor in this town, . . . and he has strong grounds for his statement, for he is one of the peace officers that have the matter largely in their own hands. McKim is the other, and we all know what he is. It rests with one or the other of these two men to decide the character of any jury that may be selected to try violations of the law. They are both sworn

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sympathizers against the movement to punish the law-breakers of our town. Small wonder that Tanner says we can’t convict anybody of law-breaking when he or MeKim select the men from whom the jury must be chosen.”

The court further finds that said defendants, in an issue of said newspaper, printed and published on Monday, the fifth day of November, published of and concerning the plaintiff the following: “Have you Tannerytis? . . . There now arises two distinct types of the disease. . . . He [meaning one afflicted with Tannerytis] knows a prostitute den is a prostitute den. Selling liquor without a license he realizes is breaking the law. . . . But, alas, this black type of the disease has so fouled his mind that he now not only acquiesces in the breaking of the law, but is willing to help drag it down. He [meaning one afflicted with Tannerytis] becomes a common drunk and a gambler.”