CHAPTER VII. LIBEL.(a) (939) General frame of indictment. (940) Libel on an individual generally. (941) Charging him with scuttling a ship, etc. (942) Posting a man as a scoundrel, etc. (943) Libel upon an attorney, contained in a letter. (944) Publishing an ex parte statement of an examination before a magistrate for an offence with which the defendant was charged. (945) Information for writing and publishing a libel against the king and government. (946) For publishing the same in other newspapers. (947) Libel on the president of the United States. (948) Another form for same. (949) Libel on a judge and jury when in the execution of their duties. (950) Libel on a sheriff, attributing to him improper motives and conduct, in getting up petitions, etc., for the locating of the seat of justice in a particular county. (951) Libel on a justice of the police court in Boston, etc. (952) Libel on an officer, said libel consisting of a paper alleged to have been read by the defendant at a public meeting, but which was in the defendant's possession, or destroyed, and consequently was not produced to the grand jury. (953) Seditious libel. The libellous matter consisting in an address to the electors of Westminster, of which the defendant was the representative, charging the government with trampling upon the people, etc. (954) Publishing at a time of popular commotion resolutions attacking the government as blood-thirsty, etc. (955) Libel in German, in the circuit court of the United States. (956) Libel in French, against a foreign potentate. (957) Sending a letter to a commissioner of revenue in the United States containing corrupt proposals. (958) Writing a seditious letter with intent to excite fresh disturbance in a district in a state of insurrection. (959) Hanging a man in effigy. (a) See Wh. Cr. L. 8th ed. § 1594 et seq. (960) Insulting a justice in the execution of his office. (960a) Scandalous words to a magistrate. (961) For seditious words. (962) Another form for same. (963) Uttering blasphemous language as to God. (964) Same under Rev. Sts. Mass. ch. 130, § 15. (965) Blaspheming Jesus Christ. (966) Blaspheming the Holy Ghost. (966a) Using indecent language in presence of female. (967) Composing and publishing blasphemous libel. (968) Obscene libel. First count, not setting forth libellous matter. Publishing an obscene picture. (970) Exhibiting obscene pictures. (971) Against the printer of a newspaper for publishing an advertisement by a married woman offering to become a mistress. (972) Indictment for threatening to accuse of an infamous crime. (973) Sending a letter, threatening to accuse a person of a crime. Mass. Rev. Sts. ch. 125, § 17. (974) Sending a letter, threatening to accuse a person of a crime. Mass. Rev. Sts. ch. 125, § 17. (975) Sending a threatening letter. (975a) Another form under English statute. (9756) Letter threatening to accuse under English statute. (975c) Threats in order to extort under English statute. (975d) Threatening to publish libel with intent to extort under English statute. (975e) Obtaining signature by threats. (975) Threats under Indiana statute. (975g) Threatening property with menaces. (939) General frame of indictment. That A. B., of, etc., on, etc.,(b) unlawfully and maliciously contriving and intending to vilify and defame one C. D., and to bring him into public scandal and disgrace, and to injure and aggrieve him the said C. D., on, etc., at, etc., unlawfully and maliciously did compose and publish,(e) and cause and procure(d) to be composed and published, a certain false, scandalous, mali (b) As to time, see supra, form 2, vol. i. p. 13. (c) As composing or writing a libel merely does not seem to be an offence unless the libel be afterwards published, the indictment must charge a publication. R. v. Burdett, 4 B. & Al. 95; Wh. Cr. L. 8th ed. § 1655. Where, however, a libel is written in the county of L., with intent to publish it, and is afterwards published in the county of M., the defendant may be indicted for a misdemeanor in either county. Ib.; by three judges, Bayley, J., dubitante. (d) This joinder is not bad for duplicity. See notes to form 2, vol. i. pp. 25, 27. cious, and defamatory libel of and concerning him,(e) the said C. D., containing therein, among other things, the false, malicious, defamatory, and libellous words and matters following, that is to say(f) (here give the libellous matter in the manner stated in the (e) It should be stated that the libel was of and concerning the prosecutor (4 M. & S. 164; 7 Mod. 400; 4 B. & A. 314), and if necessary, what were the circumstances of the publication. State v. Henderson, 1 Richardson, 179; Wh. Cr. L. 8th ed. § 1658. On an indictment for a libel against Jane Cox, which libel described her as the only daughter of the widow Roach, the innuendo in the indictment stated the identity of Mrs. R.'s daughter and of the prosecutrix Mrs. Cox it was held that it was not necessary to prove that the prosecutrix was the only daughter. State v. Perrin, 1 Tr. Con. Rep. 446; 3 Brevard, 152. It has been determined that it is a proper question to ask a witness whether, in his opinion, the alleged libellous words referred to the party alleged to be libelled. Com. v. Buckingham, Thacher's C. C. 29. In an indictment for a libel against A. S., omitting to allege that the libel was "of and concerning A. S.," it was held that such omission was not supplied by its being alleged in the introductory part, "that the defendant, intending to vilify A. S., he having been mayor of, etc., and to cause it to be believed, that as such mayor he had practised corruption and had been guilty of abuse in respect to granting a license to retail beer, etc., and concluding, "to the injury and disgrace of A. S.," etc., although the innuendos pointed the different parts of the libel to A. S. and J. L., and to the granting the license. 4 M. & S. 164. See also Clement v. Fisher, 7 B. & C. 459; State v. Nease, 2 Taylor's (N. C.) R. 270. But this statement does not appear necessary where the libel is stated to have been addressed to the plaintiff and written in the second person, "You," etc. 1 Saund.. 242, n. 3; Cro. J. 331. Whenever an inducement of extrinsic matter is necessary to constitute the matter libellous, it is necessary to aver that the libel was of and concerning such matter (8 East, 427; 1 Saund. 242-243; n. 3, 4); when not, see Ld. Raym. 1480; 2 Lev. 62; Cro. Car. 270. (f) The alleged libellous matter must be set out correctly. Wright v. Clement, 3 B. & Al 503; Tabart v. Tipper, 1 Campb. 352; Cartwright . Wright, 1 D. & R. 230; State v. Stephens, Wright's Ohio R. 73; Com. v. Gillespie, 7 S. & R. 469; Com. v. Stow, 1 Mass. 54; Com. v. Bailey, 1 Mass. 62; State v. Farrand, 3 Halst. 333; State v. Gustin, 2 South. R. 749; State v. Street, Taylor, 158; State v. Bradley, 1 Hay. 403; State v. Coffey, N. C. Term R. 272; U. S. v. Hinman, 1 Bald. 292; U. S. v. Britton, 2 Mason, 462; People v. Franklin, 3 Johns. C. 299; Com. v. Searle, 2 Binn. 232; State v. Carr, 5 N. Hamp. 367; Com. v. Harrison, 2 Gray, 289; Com. v. Stevens, 1 Mass. 203; Com. v. Parmenter, 5 Pick. 279; State v. Molier, 1 Dev. 263; State v. Carter, Conf. (N. C.) R. 210; State v. Wimberly, 3 M'Cord, 190; State v. Twitty, 2 Hawks, 487; Com. v. Sweeney, 10 S. & R. 173; Com. v. Kearns, 1 Va. Cases, 109; State v. Waters, 3 Brev. 507; Const. Ct. R. 169; Sedgwick, J., 8 Mass. 110; People v. Badgley, 16 Wend. 53; Pendleton v. Com., 4 Leigh, 694; State v. Parker, 1 Chipman's Vt. R. 298; State v. Potts, 4 Halst. 26; People v. Kingsley, 2 Cow. 522; State v. Squires, 1 Tyler's Vt. R. 147; Com. v. Holmes, 17 Mass. 236; Com. v. Sharpless, 2 S. & R. 91; Bucher v. Jarrat, 3 B. & P. 143; Howe v. Hall, 14 East, 275; Wh. Cr. L. 8th ed. § 1656. An indictment charging that the defendant published a libel on the twenty-first of the month, may be supported by proof of a publication on the nineteenth of the same month. But it is otherwise if the indictment has alleged that the libel was published in a paper dated the twentyfirst of the month. Com. v. Varney, 10 Cush. 402. It is not enough to charge the libel to contain “in substance” the matter following (3 B. & A. 508), or that it was "to the effect following." 2 Salk. 417, 600; 11 Mood. 78, 84, 85; Com. note, and proceed): to the great injury, scandal, and disgrace of the said C. D., and against, etc. (Conclude as in book 1, chapter 3.) 66 ". Sweeney, 10 S. & R. 173; State v. Walsh, 2 M'Cord, 248; Com. v. Tarbox, 1 Cush. 66; State v. Goodman, 6 Richards, 388; see notes to form 264. The usual methods of introducing the libellous words, as will appear more fully in the precedents which are to follow, are: "in which said (paper, book, or letter, as the case may be) was and is contained, amongst other things, the false, scandalous, defamatory, and libellous words and matter following, of and concerning the said A. B." etc. (2 Stark. on Sland. 383), or did publish, etc., "a certain false, etc., libel, according to the tenor following" or "containing divers scandalous, etc., matters, according to the tenor following, that is to say " (3 Chit. C. L. 887-8-9), and see the prefatory averments used in cases of forgery, supra, 264. The leading case on this point is King v. Bear, 2 Salk. 417. The indictment was for composing, writing, making, and collecting several libels uno quorum continetur inter alia juxta tenorem, et ad effectum sequentum, and the words were then set out. And it was agreed that ad effectum would of itself have been bad, since the court must judge of the words themselves and not of the construction the prosecutor puts upon them; but that the words juxta tenorem sequentum import the very words themselves. 2 Salk. 417. And it was held that the words "ad effectum were loose and useless words; but that the words juxta tenorem, being of a more certain or strict signification, the force of the latter was not hurt by the former, according to the maxim, "utile per inutile non vitiatur." But where an indictment alleged that the defendant published, etc., a libel, etc., " according to the purpose, effect, and in substance as follows," it was held that the words "substance as follows" vitiated the indictment. Com. v. Wright, 1 Cush. 46. In the same case, that of Ford v. Bennett (1 Ld. Raym. 415) was referred to, where, in a special action upon the case against Bennett et al., the plaintiff declared that the defendant, at Saltashe, procured a false and scandalous libel against the plaintiff to be written, under the form of a petition, and the libel was set forth after the words continetur ad tenorem et ad effectum sequentum. Two were found guilty, upon which judgment was entered for the plaintiff, and afterwards upon error brought in the exchequer, the judgment was affirmed, the exception taken to the words ad effectum having been overruled without consideration. And Holt, C. J., said, that he then thought the judgment to be given with too great precipitation, but he afterwards, upon great consideration, had esteemed it to be very good law. And King v. Fuller, Mich. 4 Wm. & Mary, and King v. Young, Ib., were cited as authorities in point; and the whole court were of opinion that, notwithstanding the exception, the indictment was good; but that if it had been only ad effectum sequentum, it had been ill, because it had not imported that the words were the specific words which were in the libel. This rule, however, is relaxed in the following cases : 1. Where the libellous matter is in the defendant's possession, and he, though notified to do so, refuses to produce it. In such a case it will be enough for the jury to aver the fact of such possession, as an excuse for the non-setting forth of the tenor of the libel, and then, as will be done in a form which will be presently given, to set forth the substance. This course was first suggested in the king's bench in King v. Watson (2 T. R. 200), where an information was asked against a corporation for a libel, the libellous writing being in the hands of the defendant, and not within the control of the prosecution. The case did not proceed to trial, but it was strongly intimated by Buller, J., that if it should, and the defendant refused to deliver the libellous paper, after notice, it would be enough for the prosecution to prove the substance. And it has since been held, in prosecutions for forgery, that if the prosecutor, a reasonable time before the commencement of the assizes, gives the prisoner notice to produce the alleged forged writing, he is entitled, on non-production, to give secondary evidence of its contents. R. v. Haworth, 4 C. & P. 254; R. v. Hunter, Ib. 128; Wh. Cr. (940) Libel on an individual generally. That C. D., late, etc., being a person of an envious, evil, and wicked mind, and of a most malicious disposition, and wickedly, Pl. & Pr. § 176, and in this country it has been frequently laid down that in such cases it is proper and sufficient for the prosecution to aver specially in the indictment the loss of the instrument in question, or a possession and non-production by the defendant. See Sedgwick, J., 8 Mass. 110; People v. Badgley, 16 Wend. 53; Pendleton v. Com., 4 Leigh, 694; U. S. v. Britton, 2 Mason, 461; State v. Parker, 1 Chipman's Vt. R. 298; State v. Potts, 4 Halst. 293; Bucher v. Jarrat, 3 B. & P. 143; Howe v. Hall, 14 East, 275. See notes to form 264, and for a precedent of same, infra, 952; cf. Wh. Cr. Pl. & Pr. § 176. 2. Where the libellous matter is lost or destroyed, when the same course will be sustained. Wh. Cr. Pl. & Pr. § 176. 3. If the grand jury declare of an indecent libel, "that the same would be offensive to the court here, and improper to be placed on the records thereof," the non-setting forth of the libel will be thereby sufficiently excused. Com. v. Holmes, 17 Mass. 336; and see Wh. Cr. L. 8th ed. § 1609, for other cases, and cases given infra. Thus in an indictment for publishing an obscene book or picture, it is not necessary that the libel should be set out at large. State v. Brown, 1 Williams (Vt.), 619; Com. v. Holmes, 17 Mass. 336; Com. v. Dejardin, 126 Mass. 46; Com. v. Sharpless, 2 S. & R. 91; People v. Girardin, 1 Mann. (Mich.) 90. But in such case, however, it is necessary specifically to aver the reason of the omission. Com. v. Tarbox, 1 Cush. 66. This view is accepted in England as to indecent prints. Dugdale v. R., Dears. C. C. 64. In R. v. Bradlaugh, 38 L. T. (N. S.) 118; L. R. 3 Q. B. D. 607; 14 Cox C. C. 68, it was ruled that an indictment which did not give the words of an alleged obscene libel or excuse their omission was bad. In this case it was noticed by Bramwell, J., that the American authorities excuse the non-setting forth of the libel on the grounds of its obscenity, which allegation was omitted in R. v. Bradlaugh. It will not do to say that this excuse is surplusage. An indictment which excuses the non-setting forth of a document on the ground of its loss, or of its destruction by the defendant, is good, though without such an excuse the indictment would be defective. The excuse, therefore, is essential. But, when such an excuse is made, the American cases present an almost unbroken line of authority to the effect that the obscene document need not be copied. Com. v. Holmes, 17 Mass. 336; State v. Brown, 1 Williams (Vt.), 619; McNair v. People, 89 Ill. 441, and People v. Girardin, 1 Mann. (Mich.) 90, are direct to this effect. Com. v. Tarbox, 1 Cush. 66, reaffirms the principle of Com. v. Holmes, but holds that to paste the alleged obscene matter to the indictment is a defective mode of pleading. As affirming Com. v. Holmes may also be cited Com. v. Dejardin, 126 Mass. 46. On the other hand, in State v. Hanson, 23 Tex. 232, an indictment for publishing an obscene document, without giving the words, was held bad. In this case, however, there was no excuse offered, as in Com. v. Holmes, for not setting out the libel. Com. v. Sharpless, 2 S. & R., was the case of an indecent picture, and the supreme court held that it was not necessary that the picture should be copied on the indictment. The reason, however, is the same as that given in Com. v. Holmes-that the court must preserve the "chastity" of its records, and not permit them to be used to perpetuate obscenities. It may be added to this that if an obscene publication were to be considered as exclusively a libel, it might be difficult to resist the conclusion, that as a libel, when indicted as such, it should be spread on the record, supposing that no legitimate excuse be given for the non-setting out. But there is much force in the position that an obscene publication is not so much a libel as an |