thousand dollars, or imprisonment in the county jail not exceeding one year. 250. An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown. Malice in law.-On the intentional publication by another of matter which is libelous, malice in law will be implied, whatever the motives in fact may be-3 Pick. 304; 9 Met. 410; 15 Pick. 337: 7 Cowen, 613. 251. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. The jury have the right to determine the law and the fact. Justification.-To constitute a justification, the answer must aver the truth of the publication -9 Cal. 535; 43 id. 379; 2 Hill, 243; 9 Met. 410; 15 Pick. 37; 7 Ired. 180; but if the libel assert the defamatory marter only as the belief of the author, or as rumor, or general sus picion. it cannot be justified by proof that the author believed it to be true-1 Cal. 30; 4 Conn. 498; 8 Wend. 606; 11 Price, 235; 1 Holt, 53; 6 Bing. 215. But proof that he believed it to be true may be admitted in mitigation of punishment-9 Ala. 447; 4 Man. & R. 65; 4 Barn. & Ald. 314. 252. To sustain a charge of publishing a libel, it is not needful that the words or things complained of should have been read or seen by another. It is enough that the accused knowingly parted with the immediate custody of the libel, under circumstances which exposed it to be read or seen by any other person than himself. Publication defined.-The offense is committed by sending the 11bel to the one libeled, though it reaches the car of no third person-7 Conn. 226; 2 Yerg. 531. The transmission of a sealed letter containing libelous matter is indictable-5 Humph. 112; 6 Ga. 276. 253. Each author, editor, and proprietor of any book, newspaper, or serial publication, is chargeable with the publication of any words contained in any part of such book, or number of such newspaper or serial. Liberty of the press. Every citizen has the right of investigating the conduct of those who are intrusted with public business-Ï Dall. 325; being responsible for the abuse of that liberty-3 Yeates, 520; 4 id. 269; 3 Pittsb. Rep. 41). The guarantee of freedom of speech applies to words spoken or published in regard to judicial conduct or character -19 II. 45. See Const. Cal. art. I, sec. 9. Not only the liberty of the press must be preserved, but liberty of written as well as oral discourse in all relations where there is a duty to speak, and if what is written under such a duty goes no further than duty demands, it is not indictable unless express malice is shown; otherwise if it goes beyond the line of duty-2 Bosw. 537; 1 Denio, 41; 6 Gray, 94; 21 How. 202; 13 Md. 5; 9 N. H. 34; 12 Pick. 163; 9 Phila. 54; Law R. 9 C. P. 393; 7 El. & B. 229. The editor is answerable in law if the contents of his paper are libelous, unless the matter was inserted by some one without his order and against his will-Thach. C. C. 346. 254. No reporter, editor, or proprietor of any newspaper is liable to any prosecution for a fair and true report of any judicial, legislative, or other public official proceedings, or of any statement, speech, argument, or debate in the course of the same, except upon proof of malice in making such report, which shall not be implied from the mere fact of publication. Reports of official proceedings.-Where a report of judicial proceedings, though accurate, is accompanied by comments and insinua tions to asperse a man's charac.er, it is libelous-3 Pick. 304; 7 Johns 264; see 2 Pick. 113; 1 Barn. & A!d. 379. Counsel are protected while they keep within what is materal to the cause, but not when they overstep this bound-3 Smith J.P.491; 2 Camp. 563: 5 Esp. 123; 1 Rarn. & Ald. 379. Where upon a final trial of a cause the judge makes an older of court forbidding any publication of the proceedings, the publisher cannot shield himself from indretment on the ground that the libel was a correct report of what was done-see 9 Ala. 447; 1 Ld. Raym. 148; 4 Term. Rep. 285; Moody & M. 165. 255. Libelous remarks or comments connected with matter privileged by the last section receive no privilege by reason of their being so connected. 256. A communication made to a person interested in the communication, by one who was also interested, or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent, is not presumed to be malicious, and is a privileged communication. Privileged communications.-Privileged communications are such as rebut the prima facie inference of malice, but this may be answered by proving malice in fact-20 Mass. 379; 2 Cromp. M. & R. 156. As communications to the executive or appointing power 5 Johns, 508; 1 Vab. Cas. 176; 2 Wheel. C. C. 465; 3 Whart. 158; 3 Car. & P. 14I. See 72 Mass. 261; 3 Pittsb. Rep. 44; 19 N. Y. 173; 9 Min. 133; 1 Up. Can. Q. B.211;5 id. 211; see I Up. Can. L. J. 156; or letters or reports in writing of public officers in the ordinary course of their duty-Law R. 5 Q. B. 103; id. 94; 5 Hurl. & N. 838; I Lsp. 226. So bona fide communications as to the character of candidates for office are privileged-3 Car. & 1. 146; Moody & M. 187; 5 Scott, 340; Law R. 1 Q. B. 699; but see 21 low. 202. But libelous statements inade to injure one in office, or a candidate for office, are not privileged-13 Abb. Pr. 41; 9 Minn. 188; 19 N. Y. 173. Confidential communications, by persons occupying fiduciary positions, as letters to employer, to inform of malpractice of employees 1 Camp. 268; or of a master in giving a correct character of a servant upou inquiry made of him-3 Man. & R. 101; 4 id. 338; 4 Burr. 2425; Bull N. P. ; but otherwise, if false answers be given-4 Barn. & Adol. 700. Other privileged communications, see Desty's Crim. Law, title LIBEL. 257. Every person who threatens another to publish a libel concerning him, or any parent, husband, wife, or child of such person, or member of his family, and every person who offers to prevent the publication of any libel upon another person, with intent to extort any money or other valuable consideration from any person, is guilty of a misdemeanor. TITLE IX. Of Crimes against the Person and against Public Decency and Good Morals. CHAP. I. RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND SEDUCTION, §§ 261-7. II. ABANDONMENT, and NEGLECT OF CHILDREN, §§ 270-2. III. ABORTIONS, §§ 274-5. IV. CHILD-STEALING, § 278. V. BIGAMY, INCEST, AND THE CRIME AGAINST VI. VIOLATING SEPULTURE AND THE REMAINS VII. CRIMES AGAINST RELIGION AND CONSCIENCE, VIII. INDECENT EXPOSURE, OBSCENE EXHIBITIONS, OTHER DISORDERLY HOUSES, §§ 311-18. IX. LOTTERIES, §§ 319-26. X. GAMING, §§ 330–6. XI. PAWNBROKERS, §§ 338-43. XII. OTHER INJURIES TO PERSONS, §§ 346-67. CHAPTER I. RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND SE DUCTION. § 261. Rape defined. § 262. When physical ability must be proved. $233. Penetration sufficient. $.264. Punishment of rape. § 265. Abduction of women. § 266. Seduction for purposes of prostitution. § 267. Abduction. § 268. Seduction under promise of marriage. § 269. Intermarriage subsequent to seduction. 261. Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: 1. Where the female is under the age of fourteen years. 2. Where she is incapable, through lunacy or other unsoundness of mind, whether temporary or permanent, of giving legal consent. 3. Where she resists, but her resistance is overcome by force or violence. 4. Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution; or by any intoxicating, narcotic, or anæsthetic substance, administered by or with the privity of the accused. 5. Where she is, at the time, unconscious of the nature of the act, and this is known to the accused. 6. Where she submits, under a belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to produce such belief. [Approved March 6th, 1889.] Rape defined.-Rape is the unlawful carnal knowledge of a female, by force, w thout her consent -4 Bl. Com. 210; 2 Arch. C. Pr. 152; 1 East P. C. 434, of any woman above the age of ten years, unlawfully. against her will-12 Ark. 389; 11 Ga. 225; 39 Me. 22; 9 Mich. 150; 47 Miss. 609; 25 Wis. 364; without her consent, and against her will, are |