Imágenes de páginas

So of bona fide communications

by directors and members of

companies, $ 1632. So of bona fide business publica

tions, § 1632 a. So of bona fide communications

by commercial agencies, $

1633. So of legislative proceedings and

speeches, § 1634. So of official reports, $ 1635. So of communications to electing

or appointing power, $ 1636. So of professional publications

by counsel, § 1637. So of evidence of witnesses on

trial, § 1638. So of legal proceedings, $ 1639. So of criticism of public abuse

or wrong, and of literary and

artistic criticism, § 1640. So of discipline by voluntary so

cieties, § 1641. So of publications in legitimate

selfdefence, g 1641 a. Question of privilege for court,


At common law truth is no jus

tification, S 1643. Otherwise when purpose is hon

est, to disprove malice, $ 1644. Under statutes truth admissible

on conditions, § 1644 a. Truth no defence when publica

cation is malicious, § 1645. Justification must be as broad as

charge, $ 1646. Common rumor no justification,


Malice need not be special, $


Publisher not excused by igno

rance of contents, § 1649. Question of malice is for jury, s

1650. Other libels admissible to prove

system, $ 1651. Whole publication admissible, $

1652. No defence that libel was a joke,

$ 1653. Counter evidence of good motive

inadmissible, $ 1654. IX. INDICTMENT.

Publication must be averred, $

1655. Libellous matter must be given

exactly, § 1656. Indictment must profees to do

so, § 1657. Authorship must be averred, s

1658. Libellous matter must be charged

to relate to prosecutor, § 1659. Innuendoes can interpret but not

enlarge, § 1660. Their truth is for jury, $ 1661. Unobtainable or obscene libels,

§ 1662. X. VERDIOT.

“Guilty of publishing only" 18

insufficient, § 1663. XI. THREATENING LETTERS; BLACK

Extorting money by threatening

letters indictable, $ 1664. Letters may be explained by pa

rol, § 1665. Material facts must be averred,

§ 1666. Threats to destroy and kill in

dictable, g 1666 a.


§ 1594. A DEFAMATORY libel is matter published without legal

justification or excuse, the effect of which is to insult Defamatory libel

the person of whom it is published, or which is calcuis a publication cal. lated to injure the reputation of any person by exposing

insult or

of any

him to hatred, contempt, or ridicule. Such matter may culated to be expressed either in words legibly marked upon any injure the substance whatever, or by any object signifying such reputation matter otherwise than by words, and may be expressed person. either directly or by insinuation or irony."

Libel is a crime at common law. A prosecution for libel is not to be regarded as a private action subject to compromise by the parties, but is under the control of the State.3

§ 1595. The meaning of " defamatory," when applied to individuals, is the point next to be considered ; and it may be generally said that defamation, in this sense,

injury is fined to that which (1) is provocative of wrath ; or, (2) exposes to public hatred, contempt, or ridicule.- wrath or Hence it is defamatory to publish that of another which

to public will put him, supposing him to obey the impulses common ridicule. to men under such circumstances, in a condition of mind which is likely to result in a breach of the peace. And even supposing there be no danger of any such action on his part, it is defa. matory to expose him to public hatred, contempt, or ridicule. The

is con

Test of

provocation to


| This is substantially the definition 62 Wils. 403; R. v. Kinnersley, 1 given in the English Draft Commission W. Bl. 294; Crowe v. People, 92 mil. of 1879. See, also, Steph. Dig. Cr. L. 231 ; State v. De Long, 88 Ind. 312; art. 267.

State v. Farley, 4 McC. 317; State v. 2 State v. Burnham, 9 N. H. 34; Henderson, 1 Rich. 180; but see PeoCom. v. Holmes, 17 Mass. 336, 338; ple v. Jerome, 1 Mich. 142. Com. v. Kneeland, 20 Pick. 206, 232; An indictment will lie for all words State v. Avery, 7 Conn. 268 ; 3 Swift's spoken of another, which may have Dig. 340.

the effect of excluding him from soci3 R. v. The World, 13 Cox C. C. 305. ety; as, for instance, to charge him « See 2 Stark on Slan. 210.

with having an infectious disease, such B Churchill v. Hunt, 2 B. & Ald. as leprosy, the venereal disease, the 685; 4 Taunt. 355; Macgregor v. itch, or the like. Com. Dig. Action on Thwaites, 4 D. & R. 695 ; 3 B. & C. the Case for Defamation D. 28, 29, F. 24; State v. Atkins, 42 Vt. 252; State 11, 19; 2 Burr. 930. But charging v. Spear, 13 R. I. 324 ; Steel v. South- him with having had a contagious diswick, 9 Johns. 214; Barthelemy v. ease is not actionable ; for, as this People, 2 Hill (N. Y.), 248; State v. relates to a time past, it is no reason De Long, 88 Ind. 312.

why his society should be avoided at In R. v. Hollon, 12 Lea, 482, the present. 2 T. R. 473; Stevens v. Hay.. court sustained an indictment against den, 2 Mass. 406; Bloss v. Tobey, 2 H. for libelling B., the indictment al. Pick. 320; Allen v. Hillman, 12 Ibid. leging that H. wrote and sent in B.'s 101. name a libellous letter to R.

On the same principle, to charge a

remedy, of information, however, should only be applied in cases where the wrong is of so flagrant a character as to make a criminal prosecution necessary on public grounds.

“ The court,” says Hawkins, in a passage adopted in 1884, by Lord Coleridge,1 « will not grant this extraordinary remedy by information, nor should a grand jury find an indictment, unless the offence be of such signal

woman with libidinous habits, and A. will not play the fool or the with tempting another to commit adul. hypocrite (meaning that he would). tery, is libellous. State v. Avery, 7 1 Hawk. P. C. 543. Conn. 268.

A. has the itch, and smells of brimIt has even been held libellous to stone. Villars v. Morristen, Holt, 216. charge a man with insanity ; R. v. “I think,” says Sir J. F. Stephen, Harvey, 2 B. & C. 257; and to call a “it might, under special circumstances, woman a hermaphrodite. Malone v. be a libel to say of a person a thing Stewart, 15 Ohio, 319. So it is libele apparently quite inoffensive. Suppose, lous to publish of one, in his capacity for instance, a man wrote of another, of a juror, that he agreed with another his name is A., meaning that his real juror to stake the decision of the name is A., and that the name of B., amount of damages to be given in a by which he passed, was falsely ascause, then under their consideration, sumed, would not this be a libel?” upon a game of draughts. Com. v. In Gregory v. R., 15 Q. B. 957, the Wright, 1 Cush. 46; R. v. Spiller, 2 Court of Exchequer Chamber held the Show, 205.

following words sufficient to maintain To charge a citizen with acting, in a an indictment for libel: “Why should nominating convention, under the in- T. be surprised at anything Mrs. W. fluence of a bribe, is libellous ; Hand does ? If she chooses to entertain B. v. Winton, 38 N. J. L. 122; and so (the prosecutor), she does what very with charging jurors with doing “in- few will do; and she is of course at justice to their oaths ;" Byers v. Mar- liberty to follow the bent of her own tin, 2 Col. T. 605; and so with charg- inclining, by inviting all infatuated ing a party with engrafting silver ore foreigners who crowd our streets to her in a rock, in order to cheat in a mining table, if she thinks fit." Where a adventure. Williams v. Godkin, 5 placard was posted up to the following Daly, 499.

effect: “B. Oakley, game and rabbit It is no defence that the defendant destroyer, and his wife, the seller of states that he did not believe the story. the same in country and town." Quain, Com. v. Chambers, 15 Phila. 415. J., ruled that this was not prima facie

Sir J. F. Stephen (Dig. C. L. art. 268) libellous; and as there was no innugives the following instances of de- endo showing that it charged an indictfamatory matter :

able offence, or that it related to the “A question suggesting that illegiti- calling of the prosecutor, the learned mate children were born and murdered judge quashed the indictment. R. v. in a nunnery. R. v. Gathercole, 2 Lew. Yates, 12 Cox C. C. 233, cited Roscoe's C. C. 237.

Cr. Ev, 659. “A. adds to his other vices ingrati I R. v. Labouchere, 50 L. T. (N. S.) tude. Cox v. Lee, L. R. 4 Ex, 284. 181; 15 Cox C. C. 415.


is a libel.

enormity that it may reasonably be construed to have a tendency to disturb the peace and harmony of the community. In such a case the public are justly placed in the character of an offended prosecutor to vindicate the common right of all, though violated only in the person of an individual; for the malicious publication of even truth itself (this was written when truth could not be pleaded to an indictment) cannot, in true policy, be suffered to interrupt the tranquillity of any well-ordered society.”

$ 1596. An indictment, a fortiori, will lie for all words spoken of another which impute to him the commission of some crime punishable by law, such as high treason, murder, Hence imor other felony (whether by statute or at common law); of crime forgery, perjury, subornation of perjury, or other misdemeanor.1

$ 1597. It is indictable, also, to assist in a publication which may impute incapacity or dishonor to a man in his trade or livelihood ; as, for instance, to call a tradesman a bank- And so of rupt, a physician a quack, or a lawyer a knave, or the on a man like ; or to charge a public officer with indictable mis. or liveliconduct.

$ 1598. Whatever, if made the subject of civil action, would be considered libellous without laying special damage, is in

And so of dictable in a criminal court, and by this test, therefore, whatever the law of libel, as expressed on actions for damages, is

ject of brought to bear on criminal prosecutions. There are civil action cases, however, in which an action would not lie without special

damage. laying special damage, in which, nevertheless, an indictment is good. Thus, for instance, if a man write or print, and publish of another, that he is a scoundrel, or villain, it is a libel,

in his trade


is the sub


I Com. Dig. Action on the Case for as to charging a public officer with Defamation, D. 1-10, F. 1-7, 12–18; corruption, Com. v. Damon, 136 Mass. Wonson v. Sayword, 13 Pick. 402; 442. Walker v. Winn, 8 Mass. 248; Chad : Finch L. 186; Com. Dig. D. 22–27, dock v. Briggs, 13 Ibid. 248; Miller v. F. 9, 10; 2 Stark. (N. P.) 245, 297. Parrish, 8 Pick, 384; Gay v. Homer, • State v. De Long, 88 Ind. 312; State 13 Ibid. 535 ; Hotchkiss v. Oliphant, 2 v. Lyon, 89 N. C. 569. Hill (N. Y.), 510; Stillwell v. Barter, • 2 Stark. on Slander, 120. 19 Wend. 487 ; Nash. v. Benedict, 25 6 J'Anson v. Stuart, 1 T. R. 748. Ibid. 645 ; Cramer v. Riggs, 17 Ibid. 6 Bell v. Stone, 1 B. & P. 331 ; R. v. 209; Smith v. State, 32 Tex. 594. And Pownell, W. Kel. 58; but see R. v.

limit as to time.

and punishable as such ; although in such cases a civil suit might not lie without special damage.' § 1599. Writings vilifying the character of persons deceased are

libels, and may be made the subject of an indictment ;? And so of

but the indictment in such a case must charge the libel to vilifying deceased

have been published with a design to bring contempt on persons.

the family of the deceased, or to stir up the hatred of the people against them, or to excite them to a breach of the peace, otherwise it cannot be sustained. § 1600. The Roman law here offers some salutary restrictions

for our guidance. Libels on a deceased person can be But there should be

prosecuted only by the heir, who, on the principle of universal succession, represents the deceased. The prose

cution in such case must be limited to libels published after the ancestor's death ; for, libels which the latter did not prosecute when he had capacity so to do, he is presumed to have condoned. Yet if a prosecution is instituted during the life of the libelled person, it is not barred by his death.”

it is not barred by his death.” “Iniuriarum actio" (and the term includes criminal as well as civil procedure) " neque heredi neque in heredem datur ; semel autem lite contestata ad successores pertinere." Yet even in this case a time arises when the interests of just historical criticism demand that the liberty of speech should be unrestrained ; and when, even of the most illustrious of the dead, censures the most injurious must be permitted without penal amenability. The modern Roman law declares that this time arrives when the generation living at the death of the person libelled has passed away; and this limitation has been adopted by the codes of Austria and Saxony. By the North German code,

p. 211.

S. P.

Granfield, 12 Mod. 98; where it was T. (N. S.) 177, where a criminal inforheld not indictable to charge the mayor mation for a libel on a deceased foreign and aldermen of a particular town nobleman was refused, mainly on the with being a pack of as great villains authority of R. v. Topham. See comas any that rob on a highway,” the ments in London Spectator of Feb. 16, ground being that this was general 1884, political abuse.

Tappan v. 4 Com. v. Taylor, 5 Binn. 281. Wilson, 7 Ohio, 190.

Sir J. F. Stephen says (art. 267) : i See Tillson v. Robbins, 68 Me. 295. The publication of a llbel on the

2 5 Co. 125 a; Com. v. Clap, 4 Mass. character of a dead person is not a mis163.

demeanor unless it is calculated to 3 R. v. Topham, 4 T. R. 127. See R. throw discredit on living persons." v. Labouchere, 15 Cox C. C. 415 ; 50 L. 6 L. 13. D. 47. 10.

« AnteriorContinuar »