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Earl v. Winne

Decided: December 14, 1953.


On appeal from the Superior Court, Law Division, Bergen County.

For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Oliphant, J.


This is an appeal from a judgment of dismissal entered in the Superior Court, Law Division, Bergen County, in favor of the defendants-respondents. It is here on certification under R.R. 1:10-1(a).

The defendant-respondent, Mr. Winne, was and is the Prosecutor of the Pleas of Bergen County. The defendants-respondents,

DeLisle and DeMarco, are prosecutor's detectives in the Bergen County Prosecutor's office. The action instituted by the appellant sought civil redress for his arrest and indictment for criminal libel under Article I, paragraph 6, Constitution of 1947. R.S. 2:146-1. The complaint consisted of six counts; the first count was for false arrest and false imprisonment; the second count was for malicious prosecution; the third count was for malicious abuse of process; the fourth count was for conspiracy to make a false arrest to falsely imprison the plaintiff; the fifth count was for conspiracy to maliciously prosecute the plaintiff, and the sixth count was for conspiracy to maliciously abuse process as against plaintiff.

The answer was a general denial and set up several defenses, among which were the statute of limitations and the lack of civil liability upon the part of the defendants as public officers. In dismissing the complaint the trial court held that the two-year statute of limitations set forth in R.S. 2:24-2 was applicable and it was further held that the action would not lie against a prosecutor and his detectives, citing Edelman v. Dunn, 8 N.J. Misc. 154 (Sup. Ct. 1930), and O'Regan v. Schermerhorn, 25 N.J. Misc. 1 (Sup. Ct. 1946).

The pertinent dates involved here are that this action was instituted by the plaintiff-appellant on April 9, 1952; the date of the alleged arrest was on May 2, 1946 and the complaint for criminal libel was issued against him and he posted bail on the same day. He was indicted on May 11, 1946 and entered a plea of not guilty. On June 15, 1946, plaintiff-appellant retracted the statement which was the basis of the libel, but a nolle pros on the indictment was not entered until June 29, 1949, which was about three years prior to the institution of this action.

The event, which set up the chain reaction with which we have to deal here, was a statement made in a political speech on May 1, 1946, in which the plaintiff said "and Winne's detective chief, Michael Orecchio, is the contact man for Winne with the gambling system." Before he said this he

inquired whether members of the press were present, and upon receiving an affirmative response said they wanted publicity for the entire meeting and the newspaper men could use "as much as they cared to," the same as at any other political meeting.

It is this statement that the defendants claim was a criminal libel under the provisions of R.S. 2:146-1.

On May 2, 1946, while the appellant was attending a luncheon at a public restaurant, he was called out of the meeting by the two detectives, DeLisle and DeMarco, who inquired of him whether or not he had made the alleged libelous statement. He refused to admit or deny it, and while he was standing by the detectives went to a telephone booth and presumably called their office. When they came out they told him that "Winne said to bring him in." He informed the detectives that they could not arrest him without a warrant and he further testified on depositions that they attempted to usher him into their automobile. There is some dispute as to what exactly happened next but the appellant did go back into the meeting and talked with a friend who was a lawyer. While this was going on the detectives came in again and said "we are going to take you in." No force was used but he informed them he was going in his own car and he would stop at his office. He got in his own car, stopped at his office and at all times was followed by the two detectives in their car. He then went on to the prosecutor's office where he alleges the defendant, Winne, asked him whether he had made such a libelous statement, and on refusal to answer the question Winne ordered a warrant be issued for his arrest and the plaintiff's bail set at $5,000. The criminal complaint was signed by the defendant DeLisle, and the appellant was fingerprinted, photographed and put in jail until the bail was produced.

Reverting now to the language used by the plaintiff-appellant in the political address in question, the language expressly and by innuendo imputes that the defendant, Winne, was guilty of malfeasance in office. Remarks are defamatory per se if they impute directly or by innuendo

malfeasance on the part of a public official. Garven v. Finch, 97 N.J.L. 329 (E. & A. 1921); Reilly v. Curtiss, 83 N.J.L. 77 (Sup. Ct. 1912). They are actionable when thus spoken or written. Shaw v. Bender, 90 N.J.L. 147 (E. & A. 1917). See also Walsh v. Trenton Times, 124 N.J.L. 23 (E. & A. 1940); Kelly v. Hoffman, 137 N.J.L. 695 (E. & A. 1948); State v. Reade, 136 N.J.L. 432 (Sup. Ct. 1948); 2 Chitty Blackstone *151; 3 Chitty Criminal Law (4 th ed. 1841), *867; 1 Russell on Crimes (9 th ed.), 321; 1 Odgers on Libel and Slander 41. Such libels are clearly indictable under the common law, our Constitution and R.S. 2:146-1.

The theory that such libels tend to create animosity and disturb the public peace is the basis of the criminal prosecution. 2 Chitty Blackstone *151; 1 Russell on Crimes 321. Such words are defamatory per se and are redressable by an action for slander if made orally and an action for libel if the defamatory words are written or printed. But the mischief and damage is greater in a libel since the record is permanent and therefore presents a situation which is a continuing invitation to breaches of the peace. It is the libel which is the indictable offense rather than the slander, and the publication of the libel is one of the elements of the crime.

Under the facts here presented the appellant did not actually publish the libel. This apparently was done by newspapers circulating in Bergen County, which published the reports of their reporters who had attended the meeting in question. There is respectable authority that insofar as this appellant is concerned that this amounts to a publication within the law of criminal libel, 1 Odgers on Libel and Slander 120, and the cases cited there, and in particular the case of Parkes v. Prescott and Ellis, L.R. 4 Ex. 169; 38 L.J. Ex. 105; 17 W.R. 773; 20 L.T. 537. In this latter case, at a meeting of the board of guardians at which reporters were present one of the members charged facts that imputed the plaintiff was guilty of a misdemeanor. Ellis, one of the guardians said "I hope the local press will take notice of this

very scandalous case." The chairman, Prescott, remarked "I am glad gentlemen of the press are in the room and I hope they will give publicity to the matter," and then Ellis added "And so do I." From the notes taken in the room the reporters prepared condensed accounts which appeared in the local newspapers and which though partly in the reporters' own language were substantially correct reports of what took place at the meeting. The judges of the Court of Exchequer by a divided vote held that the trial judge was wrong in directing that there was no evidence to go to the jury in that there was no publication in the strict sense. The appellate court held that Prescott and Ellis had directed the publication of the account which appeared in the papers and therefore a case was made out.

The eminent writer, Odgers, says that such a rule is helpful where the words if spoken are not actionable but are so if ...

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