20 Pa. Super. 503 | Pa. Super. Ct. | 1902
Opinion by
1. In Jones’s Estate, 27 Pa. 336, where a judgment was entered against “A. Jones,” whose name was “Abel Jones,” and it was proved that he was well known by the abbreviated designation, and that he uniformly wrote his signature in that way, and that there was no other person in the county for whose name it would answer, it was held that, the lien was well entered and.was entitled to preference over one subsequently entered against “Abel Jones.” In Laflin & Rand Co. v. Steytler, 146 Pa. 434, it was held that the provision of the Act of June 2, 1874, P. L. 271, requiring that the statement to be signed and acknowledged by persons desiring to form a limited partnership association shall “ set forth the full names of such persons,” is sufficiently complied with when the names with which the statement is signed and acknowledged are the names habitually used by the persons in business, and those by which they are generally known in the community. “ The object aimed at was the identification of the person, and the requirement of his full name had nothing further in view. . . . A name, therefore, is the title used for the identification of an individual, and the intent of its requirement in full is certainty of such identification. The full name, therefore, is no more than the whole of such title, as it is used by himself and his neighbors for such purpose.” The statutes construed in these two cases are not less imperative in requiring the full name to be set forth than is the 88th section of the Act of April 14, 1834, P. L. 356, which provides that in filling the jury wheel “ the name, surname and addition or occupation and place of abode of each one of the persons selected ” shall be written upon tbe slips to be placed in the wheel. The object aimed at by the legislature in each instance being the identi
2. It is urged in support of the second assignment of error that a certificate setting forth the cause of disqualification or disability of the president judge of the district and the call on the president judge of the 29th district to hold the regular term or to try the cause, should have been filed of record, and there being no such certificate the latter judge had no right, power, jurisdiction or authority to try the cause. True the certificate filed does not affirmatively set forth that the president judge of the district was disqualified or disabled within the meaning of the act of 1834, the act of 1856, or the act of 1860, nor that in his opinion the proper dispatch of the public business required that he should have the assistance of another judge at that term, as provided in the act of 1887. But, giving .the certificate a reasonable intendment, the record does show that the president judge of the 29th district presided at the trial pursuant to a call made by the former. Presumably, there was a legal reason for the call: Commonwealth v. Bell, 4 Pa. Superior Ct. 187.
3. The third assignment of error does not appear to be based on any bill of exceptions; but aside from that, it is well settled that a motion for continuance is addressed to the sound discretion of the court, and except in clear cases of abuse of discretion the refusal of the motion is not assignable for error, even if excepted to at the time. We find nothing in the evidence adduced in support of the motion to take this case out of the general rule. See Commonweath v. Dietrich, 7 Pa. Superior Ct. 515 ; Commonwealth v. Craig, 19 Pa. Superior Ct. 81.
4. The fourth, fifth, sixth, seventh, eighth, eleventh and fourteenth assignments relate to the same matter, and may be considered together. A witness named Bovee, called by the commonwealth, testified that in a conversation which took place between him and the defendant, the latter made certain dec
5. In the first count of the indictment the defendant was charged with the publication of a libelous cartoon in a newspaper owned and conducted by him, which imported and conveyed the meaning that Conrad Kraus, an associate judge of the county of Sullivan, “ was wanting in integrity in the performance of his duties as said associate judge and that he had wrongfully and fraudulently sworn' and vouched to the auditor general of the said commonwealth to having traveled more miles than he rightfully should have done and thereby secured from the state treasury a greater compensation as associate judge than he was justly and rightfully entitled to, and meaning, illus
6. Unquestionably the matter charged in the indictment was prima facie libelous ; it referred to the person named in the indictment as libeled; and its publication was admitted. These essentials of the offense charged in the indictment being established, a prima facie case for the commonwealth was made out. In other words, the commonwealth was not required, in its case in chief, to furnish other proof of malice. If its case had rested here, the defendant would have been put to proof that it was neither negligently nor maliciously made, in order to obtain the immunity from criminal responsibility guaranteed by the constitution. See Commonwealth v. Swallow, 8 Pa. Superior
7. It is settled by the decisions that the privilege may be lost by the manner of the publication ; the evidence of malice may be intrinsic, from the style and tone of the article ” : Conroy v. Pittsburg Times, 139 Pa. 334 ; Commonwealth v. Little, 12 Pa. Superior Ct. 636. “The official action of public officers is at all times a proper subject for inquiry by the citizen and for information to the public. But even when investigation may reveal conduct that justly deserves censure, a publication on the subject is not to be made a vehicle for unfounded charges or malicious detraction. The truth is not to be distorted in
8. In his ninth point the defendant asked the court to charge that the privilege attaching to such a publication as this is not destroyed by the fact “ that the prosecutor and defendant were not on terms of friendly intimacy.” The correctness of this as' an abstract legal proposition cannot be questioned. That fact alone would not destroy the privilege. To hold otherwise would be to make proof of unfriendly relations, without more, presumptive evidence of malice, even though the defendant was not moved by them in publishing the truth with regard to the official conduct of a public officer or with regard to other matter proper for public information and investigation. In affirming the point the court correctly said that if the publication was a proper one, and legitimate criticism of the prosecutor, the feeling existing between him and the defendant should not be taken into consideration; but this instruction was coupled with the remark, “yet in determining what the character of the publication really was, it is almost impossible for you to avoid taking into consideration, to some extent, the feeling between these two parties.” This qualification was not called for by anything suggested in the point, but had a tendency to divert the attention of the jury from the consideration of the legal principle to which the point was intended to call specific attention. We think the point should have been affirmed without qualification.
9. The court committed no error in rejecting the offer which is quoted in the tenth assignment. The court properly held that it did not appear by the offer, even as amended, that the Avitness was qualified to express an.opinion as to the number of days in each year that would be required for the transaction of the legal business coming before the court.
10. We are not prepared to say that where the truth of an alleged libelous publication is in issue, the admission of its truth by the person alleged to be libeled would not be competent evidence in support of the affirmative of that issue. But we are not convinced that the declaration alleged to have been
J udgment reversed and venire facias de novo awarded.