Commonwealth v. Damon, 136 Mass. 441

136 Mass. 441 | Mass. | 1884

Field, J.

The motion to quash was rightly overruled. The publication complained of, even if the innuendo be considered as too broad, does convey the imputation that Hart, as city marshal, received presents for permitting persons to occupy the sidewalks of the city, and that he threatened the defendant with prosecution for obstructing the sidewalk, maliciously, because he had received no presents from the defendant.

The exceptions state that the defendant offered evidence to prove the truth of the allegations of the alleged libel; he thus attempted to bring himself within the protection of the PubSts. c. 167, § 80, and c. 214, § 13. If the jury found that the matters contained in the publication were true, the Commonwealth, to prevail, must show an actual malicious intention on the part of the defendant. Lothrop v. Adams, 133 Mass. 471. If the jury did not find the publication to be true, the common law of criminal libel governed the case. Commonwealth v. Chapman, 13 Met. 68. In one aspect of the case, therefore, proof of actual malice on the part of the defendant in making the publication was material.

The publication complained of was made on May 18, 1883. The articles which were admitted for the purpose of showing malice were published in the same newspaper on subsequent days, the last being in September of the same year. The first, second, and fourth apparently refer to matters contained in the publication complained of. The third, fifth, sixth, and seventh each contain criticisms or complaints either of Hart or of city marshals, and the jury may have found that Marshal Hart was intended. We cannot say that any of them appears on its face to be libellous. Some of them apparently tend to show ill-will towards Hart. The question then does not, as we interpret the exceptions, arise, whether the publication of a subsequent libel of a different character can be admitted as evidence of malice in the publication complained of. In this Commonwealth, it has been decided that, in an action of slander, or in an action or prosecution for a libel, the uttering or publishing of similar words, or of words of a similar import, or declarations upon the same subject, or referring to the publication complained of, maybe admitted in evidence upon the issue of actual malice, but that evidence of a distinct and different calumny is inadmissible. Bodwell v. Swan, 8 Pick. 376. Watson v. Moore, 2 Cush. 133. Commonwealth v. Harmon, 2 Gray, 289. Baldwin v. Soule, 6 Gray, 321. Markham v. Russell, 12 Allen, 573. Robbins v. Fletcher, 101 Mass. 115. Clark v. Brown, 116 Mass. 504. If the other publications were criminally libellous, this would not prevent their admission, as evidence of" malice, if otherwise admissible. Thayer v. Thayer, 101 Mass. 111. Commonwealth v. Nichols, 114 Mass. 285. Commonwealth v. Coe, 115 Mass. 481. Commonwealth v. Bennett, 118 Mass. 443.

In actions in which fraud is involved, it has been settled that evidence of fraudulent transactions with other persons will not be admitted upon the question of intent, unless there appears to be some connection between the fraud alleged and the other transactions, from which the jury can find a purpose common to all. Jordan v. Osgood, 109 Mass. 457. Stockwell v. Silloway, 113 Mass. 384. Haskins v. Warren, 115 Mass. 514. Horton v. Weiner, 124 Mass. 92. Commonwealth v. Jackson, 132 Mass. 16. Evidence of acts or declarations of the testator, subsequent to the execution of a will, are evidence of the state of the testator’s mind upon the issues of fraud and undue influence, if they are such as to afford a reasonable inference of a condition of mind sufficiently permanent to have existed at the time of the execution of the will. Shailer v. Bumstead, 99 Mass. 112. Potter v. Baldwin, 133 Mass. 427. The cases generally on this point in libel are collected in Odgers on Libel and Slander (Bigelow’s ed.) 271, and note. It is useless to attempt to reconcile them. We think that, in criminal prosecutions for libel, the reasonable doctrine is, that some connection must be shown between the publication complained of, and the publications admitted in evidence to prove actual malice ; but if these tend to show general ill-will towards the person concerning whom the publication complained of is made, and are of such a nature as to indicate a persistent disposition of hatred or ill-will towards him, or if they appear to be a part of a settled purpose to bring him into public hatred, contempt, or ridicule, and are sufficiently near in time to afford a natural inference that the same state of mind existed when the publication complained of was made, they are admissible, although they are subsequent to the publication complained of, and do not expressly refer to it. We cannot say that the articles admitted in evidence were not of this character.

The questions put to the defendant, who offered himself as a witness, if put to any other witness, might perhaps be held incompetent, as calling for an opinion upon the character of articles published in a newspaper, when, so far as appears, the articles themselves could be obtained, and were the best evidence of what they contained. But the intention or state of mind of the defendant towards Hart, in making the publication with which he was charged, was material; and, for this purpose, his opinion or understanding of the articles published by him in his newspaper as friendly or unfriendly towards Hart, would be relevant upon the question of good or ill will towards Hart with which he made the publication. See Robbins v. Fletcher, ubi supra.

The first two instructions which the defendant asked the court to give, ought not to have been given. If the jury found that the matters contained in the publication were true, they approach more nearly to what we conceive the law to be; but they were not accompanied with this qualification. The third instruction asked for was substantially given. The first part of the instructions given to the jury is in accordance with the law when the truth of the publication is not established. Commonwealth v. Morgan, 107 Mass. 199. Commonwealth v. Nichols, 10 Met. 259. If the truth of the matters contained in the publication is established, we think the Commonwealth must show that .the defendant in a legal sense actually participated in, or authorized, the publication, and that he did this with an actual malicious intention. The attention of the presiding justice was not distinctly called by counsel to the different rules of law applicable to the different issues in the case; but the instruction that, “ if the truth of the article is established, as claimed by the defendant, it is a perfect and complete defence, unless express malice in the publication is shown,—malice in the popular sense of hatred and ill-will,”—is correct as far as it goes, and does not seem to us misleading. If the defendant desired further instructions upon this part of the case, it was his duty to ask for them.

Exceptions overruled.