76 Md. 510 | Md. | 1893
Lead Opinion
delivered the opinion of the Court.
The appellant was indicted by the grand jury of Alleghany County for libel. There are five counts in the indictment. To every count a demurrer was filed. The demurrers were overruled and thereupon three pleas in abatement were pleaded. To the second and third the State demurred. The first was traversed and issue was
When the Act of 1872, ch. 316, allowed for the first time an appeal in criminal cases, it provided that the appeal should he taken before sentence was imposed, and it has been repeatedly held by this Court that upon an appeal under that statute a demurrer to the indictment could not be considered, and that the only questions which could be examined were those presented by hills of exception. As a result it was possible that the same case might he brought here twice — once on appeal before sentence to review the lower Court’s rulings on questions presented by hills of exception; and once after
We hold, then, that when an appeal is taken in a criminal case under the Act of 1892, ch. 506, both the
The demurrers to the indictment being, then, properly before us on this appeal, the first inquiry involved is as to the legal sufficiency of the indictment.
The first count of the indictment alleges that the Hon. Henry W. Hoffman was on November 22d, 1892, one of the Associate Judges of the Fourth Judicial Circuit of the State of Maryland, and that it was his duty to sit in the trial of all criminal cases for the violation of the liquor and license laws of the State, occurring in Alleghany County, and “legally brought before him in said Court by indictment or otherwise, and to impose just sentences upon all offenders against said liquor and license laws who were convicted before him in said Court, and to that end that said Judge sat upon the bench in the Court house of said county, and pronounced judgments and sentences therefrom, and as such Judge occupied and used a public office in said Court house adjoining the Court room therein, and as such Judge * * * * * so performing the duties of the said office was then and there one of the servants of the public of said county in said Court house.” That on the date above named the appellant was the owner, proprietor and publisher at Alleghany County of a certain newspaper called the Cumberland Times, and that maliciously and unlawfully contriving to injure, &c., the said Henry W. Hoffman as such Judge, did unlawfully and maliciously print and publish in said newspaper, called the Times, “a false, scandalous, malicious and defamatory
The second count sets forth the same article and charges it to be a libel upon David W. Sloan, the State’s Attorney of Alleghany County.
The third count likewise sets forth the same article from the Times, and charges it to be a libel upon Theodore Luman, Clerk of the Circuit Court for Alleghany County.
The fourth count also sets forth the same article and charges it to he a libel upon Samuel S. Warnick, the sheriff of Alleghany County. And the fifth count again sets forth the same article and charges it to be a libel upon the Judge, the State’s Attorney, the clerk, and the sheriff of Alleghany County. The colloquia and the innuendoes in the second, third, fourth, and fifth counts are, mutatis mutandis, the same as those just quoted from the first count.
In civil cases the question as to whether the declaration contains a good cause of action is always matter of
Now, taken by itself and without reference to the inducement or the colloquium, the article alleged to be libelous does not assail Judge Hoffman at all. The plain, the obvious, and the natural import of its language, as quoted in the indictment, is applicable alone to the'State’s attorney. There is no reference byname, by description, by suggestion, or in any other way, to any official but the State’s attorney, save perhaps, the members of the General Assembly. The extract from the New York Herald which is made the basis of the article in the Times, has relation exclusively to the prosecuting attorney of New York City; and there is nothing in that extract or in the application of it to Alleghany County which could by any fair, reasonable, or natural interpretation include Judge Hoffman. On the contrary, the alleged libelous article on its face expressly negatives such a construction, for-it declares that the' Times “can not help applying to” the situation of affairs in Alleghany County “the words of the New York Herald of Sunday upon the same subject;” and.the subject and the only subject with which the Herald was dealing was the failure of the public prosecutor to indict and bring to punishment violators of the excise laws. It is true the Times speaks of “the Court house ring,” but it nowhere intimates that Judge Hoffman was a member of that ring, or that the “ring” itself so alleged to exist, was a corrupt combination of public officers in and about the Court house. It is also true that the article asserts that
Judge Hoffman is not one of. many persons severally attacked in the same article, for he is not personally or descriptively mentioned or alluded to; but the indictment by alleging in the first count that he was a public servant in the Court house, undertakes to select him, and him alone, from a whole class of public servants as the person libeled, though if that class includes him'it also includes the other Judges on the same bench, and every public servant in the Court house of Alleghany County. In the absence of the most remote suggestion in the published matter that he was aimed at rather than some other person equally answering the description of public servant, the words “public servants,” even by the aid of the colloquium and the inducement, can not be treated as designating him with any approximation to legal certainty, and cannot warrant the innuendo that he covenanted and bargained with dive-keepers for their political influence. This is well illustrated by the case put by Lord C. J. Denman in Solomon vs. Lawson, supra: “Suppose” said his Lordship “the words to be ‘a murder was committed in A’s house last night’; no introduction can warrant the innuendo ‘meaning that B. committed the said murder. ’ For the Court must see that the words do not and cannot mean it, and would arrest the judgment.” The same doctrine was recognized and applied upon a demurrer to the evidence in Newbold, &c. vs. The J. M. Bradstreet & Son, 57 Md., 38. In Van Vechten vs. Hopkins, 5 Johns., 211, it was stated that there were cases in which the words in themselves were held to he so vague and uncertain as that it could not be intended they were spoken of any person;
Fox’s Libel Act passed in 1792, 32 Geo. III, ch. 60, provided that in all criminal proceedings for libel the jury shall be the judges of the question of libel or no libel, under the definition of the Court; and the leading case of Baylis vs. Lawrence, 11 Ad. & El., 920, established the same rule in civil cases. Notwithstanding this, in subsequent civil cases, the English Courts have not hesitated to decide that publications were not capable of the defamatory meanings ascribed to them by the innuendoes. Thus in Mulligan vs. Cole, L. R., 10 Q. B., 549, Mellor, J., speaking of the publication said, “I cannot help thinking that to an ordinary person it would convey no more than the legitimate information, and that no such defamatory meaning as that imputed by the innuendo, nor any other defamatory meaning, was intended to he expressed.” In Capital and Counties Bank vs. Henty, 5 C. P. D., 514, the question of libel or no libel was left to the jury, and they failed 'to agree on a verdict. A motion was then made to enter judgment for the defendants, but this was overruled on the ground that the publication was susceptible of the meaning alleged. On appeal to the House of Lords (L. R., 7 App. C., 741,) it was held “that in their natural meaning the words were not libelous; that the inference suggested by the innuendo was not the inference which reasonable persons would draw,” and that consequently a judgment ought
We are not to be understood as calling in question the settled doctrine that when the libelous words are ambiguous or ironical, or otherwise, upon their face, do not distinctly indicate or designate or describe the person intended to be affected by them, they may, by appropriate prefatory averments and colloquia, be made sufficiently certain in their application; and that, certainty in such cases is to be arrived at by taking into consideration the facts stated in the inducement and the colloquium in connection with the whole of the libel —all of which must be submitted to the jury.
From the views we have expressed it follows, first, that the article is not on its face a libel on Judge Hoffman; and secondly, that it can not, by any inducement, colloquium or innuendo, be made to include him; because it is applicable only to the State’s attorney. As a consequence the first count of the indictment is bad, and the demurrer to it should have been sustained.
The third and fourth counts are, for the same reasons, also bad, and the demurrer should have been sustained as to them.
The fifth count couples the Judge, the State’s attorney, the clerk and the sheriff' together, and charges that the libel was levelled at them all. Because the State’s attorney is included it is insisted that this count is good. But as we have just held that the article is not a libel on the Judge, the clerk or the sheriff, the attempt, by joining their names with that of the State’s attorney, to make language apply to them collectively which does not include them distributively, cannot prevail. They can not be brought within the words or the meaning of the libelous article, merely by having their names associated in the indictment with the name of a person apparently intended to be assailed. This count was, therefore, also
The demurrer was properly overruled as to the second count, that being the only good count in the indictment.
It has been strenuously insisted on the part of the State that as this one count is good the judgment cannot be reversed for the erroneous rulings on the demurrers to the other counts; and in support of this position the case of Manly vs. The State, 7 Md., 149, has been relied on. But that case presented a very different question. No demurrer was filed there to the indictment, and neither of the counts was defective. The first count charged an assault with intent to murder, and the second count an assault and battery. The verdict was a general one of guilty. A motion in arrest of judgment was made because the verdict was alleged to be uncertain, and the uncertainty was supposed to arise from the fact that different punishments were applicable to the different counts. But it is perfectly obvious that a general verdict of guilty was in effect a finding upon both the counts and the practice under like conditions, both in England and in this country, was to pass judgment and sentence upon the count charging the higher grade of offence. But that is not the question now involved. Since the Act of 1852, ch. 63, (Code, Art. 27, sec. 286,) no motion in arrest of judgment can prevail if the defect relied on could have been taken advantage of on demurrer; and a demurrer is the proper mode to assail a bad count in an indictment.
If the demurrer had been filed generally to the whole indictment, and not to each count, and there was one good count, the overruling of the demurrer would have been proper, because, unless the whole indictment were bad, the demurrer could not be sustained. Wheeler vs. The State, 42 Md., 563. But as the demurrers in the case at bar were to each count, and as the verdict was
Just here we are confronted by the case of Gibson vs. State, 54 Md., 447, which was not referred to in the argument, but which decides flatly the reverse of what we hold now. In that case there were two counts in the indictment. The prisoner demurred to the whole indictment and the demurrer was overruled. He then demurred to the first count alone, and that demurrer was also overruled. He next pleaded not guilty, and a general
Sec. 15 of Art. 5 of the Code does not aid the conclusion reached in Gibson’s Case, and cannot be invoked in the case at bar. That section provides that no judgment or verdict shall be reversed if there be one good count in the declaration. This obviously relates only to civil cases, and has no application whatever to indictments. That is the plain import of the language, and the Act of 1809, ch. 153, from which sec. 15 of Art. 5
We come now to the first plea in abatement, and it presents a most important question.
By sec. 7, of Art. 51 of the Code, it is provided that: “It shall be the duty of the Judges of the Circuit Courts for each of the counties, * * * * in the presence of such practising members of the Bar of said Court as shall think proper to attend, notice of the time and place having been first given to said Bar through the criers of said Courts, to proceed to select from the lists last ’ furnished by the Clerks of the County Commissioners, ***** and from the poll-books of the several election districts of said counties, that shall be returned and filed in the clerk's office of said Court after any general election that may be last held previously to such selection, a panel to consist of the names of two hundred persons, ***** to be fairly and impartially selected, of the age aforesaid, by the said Judge, with special reference to the intelligence, sobriety and integrity of such persons, and without the least reference to their political opinions. * * * * .” The plea alleges that the jurors drawn for the April Term, 1892, of the Circuit Court for Alleghany County were not drawn as required by the statute, and that the presentment and indictment against the traverser were not found by a legally constituted grand jury. Upon this plea an issue was joined and a trial thereof was had before the Court, and the finding and judgment thereon were against the traverser. By the first bill of exceptions it appears that Judge Hoffman, who was the only witness examined on this issue, testified that he had directed the crier to notify the members of the Bar that on March
But this is not all; Sec. 5 of Art. 88 of the Code of 1860 provided, that the sheriff should make oath that he would “not summon or return as a juror any person who * * * * * may have been recommended or requested to be returned by another person;” and sec. 11 of Art. 51 of the Code of 1888 enacts, that “the name of no person disqualified or exempted by existing law from serving as a juror, or whom by existing law the sheriff is forbidden to summon as such, shall be selected and placed upon the panel or list from which the drawing is-to be made as directed by this Article, &c.” Obviously, then, persons whose names were recommended or suggested, the sheriff was, by the Code of 1860, forbidden to summon; and persons whom the sheriff was forbidden by that Code to summon, are by the eleventh section of Art. 51 of the Code of 1888, expressly and absolutely disqualified to serve as jurors. In other words, the disqualification of a person arising from the fact that his name has been recommended or suggested still prevails; and, as a consequence, it follows that such a person must be excluded from the jury. The re-enactment of this disqualifying provision signally demonstrates that the Legislature of 1867 were fully impressed with the conviction, as their predecessors had likewise been In passing the Act of 1797, ch. 87, that “the integrity, experience and intelligence of jurors are indispensably necessary for the due administration of justice.”
From the forty-eight names drawn in the manner described the grand jury which presented and indicted the traverser were selected. His plea in abatement, raised in the proper way and at the proper time, the
This conclusion is decisive of the case, and we need not enter upon a consideration of the motion to strike out the judgment;' but we proceed to examine the motion filed by the Attorney-General to dismiss the pending appeal.'
On May 24th, 1892, the Court below entered judgment against the traverser, and on the following day the latter filed a motion to strike out the judgment. Whilst that motion was pending, and before it had been determined, the traverser, on July 15th, 1892, prayed an appeal from the judgment on the demurrers, and from the finding and judgment on the plea in abatement. It is now insisted by the Attorney-General that because after July 15th testimony was taken, and a hearing was had on that motion in the Court below, the appellant must be treated as having waived his appeal entered on July 15th — and this for the reason that the appeal of July 15th operated to remove the record from the Circuit Court, whilst the further proceedings on the motion to strike out the judgment could only have been taken upon the assumption that the record was still there, and that, if still there, the appeal had been abandoned. But we cannot assent to this. The motion to strike out the judgment was not a proceeding taken in lieu of the appeal, and its consideration by the Circuit Court in no way involved an interference with that appeal, unless the judgment had been actually stricken out. It does not follow that no proceeding can be had in the cause in the Court below, because an appeal has been taken. The appeal of' itself neither stays execution nor necessarily suspends all
Inasmuch as we have not found it necessary to consider the appeal from the refusal of the Court to strike
Because of the errors we have indicated the judgment must be reversed; and as the traverser cannot again be tried upon an indictment returned by a grand jury improperly assembled, a new trial will not be awarded.
Judgment reversed without awarding a new trial.
Dissenting Opinion
filed the following dissenting opinion:
I cannot agree with the majority of the Court as to the construction of the jury Act. I cannot agree, because the construction now placed upon it, is not only against the uniform, practice, that has existed in this State ever since it was passed, a period of five and twenty years, but against, it seems to me, the letter and the spirit of the Act itself. One might infer from the argument of counsel that the Act was passed solely for the benefit of Alleghany County, and that its construction was to be governed by conditions existing or supposed at least to exist in that county. It is an Act however, providing the mode and manner for the selection of jurors for each and every county in the State, and like all other statutes it is to be construed according to its plain import and meaning, bearing in mind the object and purposes for which it was passed.
Now what are the provisions of the Act ? It provides that it shall be the duty of the Judges of the Circuit Courts for each of the counties, in the presence of such members of the Bar, as shall think proper to attend, to select from the tax list and poll-books of the several election districts of ,the county, a panel of two hundred prisons, the said panel to be fairly and impartally selected, with special reference to the intelligence, sobriety and
It further provides, that the names thus selected shall be written on separate ballots and these ballots shall be put in a box, from which shall be drawn, one by one, forty-eight ballots, and the names appearing on the ballots so drawn, shall constitute the grand and petit juries.
Now I agree that the Judge himself and no one else is to select the panel of two hundred persons. I agree too, that this selection is to be made publicly, in the presence of such members of the Bar as may think proper to be present. But I cannot agree, that the tax lists and poll-books “are the two exclusive sources from which the Judge can procure the names to be placed in the jury box.” These two sources merely show who are voters and who are tax-payers. But these are not the only qualifications prescribed by the Act. On the contrary, it provides in express terms that the panel shall be selected “with special reference to the intelligence, sobriety and integrity of the persons selected.” And however wide may be his acquaintance, it can hardly be presumed that a Judge can from his own personal knowledge determine the qualifications of the five thousand persons in some counties and fifteen thousand in others, whose names appear upon the tax list and poll-books. In fact, the Court say, a Judge may very properly, and from the nature of the case, must often inform himself by inquiring as to the qualifications of the persons selected. But he cannot request persons, who may be familiar with the people living in their respective neighborhoods to furnish or suggest the names of persons qualified in their judgment to act as jurors. Not that the statute so forbids, for it is entirely silent as to the mode and manner by which the Judges are to inform themselves as to the qualifications of the persons to be selected.
Or, instead of this mode, he may take the poll-books and tax list, and in the presence of the members of the Bar and other persons, go over the names one by one, till, from his own knowledge or from information derived from others, he has found two hundred qualified jurors. This, one of the Judges in my circuit attempted to do, and it ended in a general wrangle between certain members of the Bar as to the respective qualifications of the persons to be selected. I cannot suppose for a moment that the Legislature ever meant to surround the selections of jurors with such embarrassments and difficulties as these. No such construction was ever put upon this Act during the five and twenty years since it was passed, and tested by it, I question whether during all this period there ever has been in this State a lawfully constituted grand or petit jury. I am quite sure that I have not, nor has any other Judge so far as I am advised, ever selected a panel in conformity with the construction of the Court. On the contrary, I myself, and other Judges, to my knowledge, have selected jurors in the same manner substantially as the panel in this case was selected by Judge Hoffman. I have always considered it to be my duty only to inform myself,'by inquiry of persons in whose judgment I could only rely, or by any other means, as to the qualifications of persons residing in different parts of the county. And when necessary I have not hesitated to request them, to furnish me the names of such persons for my consideration. There may be some objections in requiring the Judges to perform this or any other duty not strictly judicial; and they
As to the other questions decided by the Court,— whether the libel was, properly pleaded in the several counts of the indictment, or whether one good count in an indictment will sustain a verdict of guilty where there has been a special demurrer to each count, — I express no opinion. I express no opinion because, if the grand jury was an illegally constituted body, and the Court has decided it was, and the indictment was a nullity, then there is an end of the case. This being so, whether Gibson vs. State, 54 Md., 447, was rightly decided, is not really a question before the Court — it is not before the Court because, the indictment being a nullity, a conviction under it, could not be sustained, irrespective altogether whether the counts are good or bad. This much, however, I may say, that the decision in that case was rendered after full consideration, and concurred in by Bartol, C. J., Bowie, Miller, Alvey, and Robinson, J., and 1 hardly think it necessary to reverse it upon what seems to me to be merely a moot question. “Stare decisis” is an old, but safe, maxim of the law.