136 Mass. 164 | Mass. | 1883
The motion to quash was rightly overruled. The indictment alleges a libel upon Mr. Sprague in his private capacity, and a large part of the publication obviously relates to him in that capacity. A person cannot be untruthful, profane, or a libertine in his official capacity. These are attributes of his moral character as a man, not as an officer, though they may render him unfit to hold the office.
The judge was right in ruling that the first, second, fifth, sixth, seventh, and ninth charges in the publication relate to Mr. Sprague in his private capacity.
The defendant contends that the publication was privileged, for the reason that Mr. Sprague held an elective office, and had not disclaimed his intention to be a candidate for re election; that he might be considered to be such a candidate, if he did not disclaim it; that, in becoming a candidate, he must be considered as putting his character in issue, so far as it might affect his fitness and qualification for the office; that it was the duty and privilege of a voter publicly to criticise and condemn his character or conduct, and to publish any statement of facts within his knowledge or belief which tended to show his qualifications for the office; that it was only necessary that they should be published to the voters of the county in good faith, and without malice, to render them prima facie privileged communications; and that, for this reason, the first, second, third, and fifth requests for rulings should have been granted.
Though we might not be disposed to dissent from the defendant’s claim, if the occasion were such as to render the publication privileged, we are of opinion that, in the case before us, no such occasion is shown. Mr. Sprague held an office of three years’ tenure; an election would not occur for more than a year; he had neither declared nor disclaimed his intention to be a candidate for reelection. So far as appears, the question of an election was in no way being agitated, and it would be carrying the doctrine of privilege to an unwarranted extent to hold, as we are asked to do by the defendant, that Mr. Sprague was presumably a candidate for reelection, and that the charges made against his private character, affecting his qualifications for the office, as set forth in the indictment, were made upon a privileged occasion, and were prima facie privileged.
It is true that the contention of the defendant, that Mr. Sprague might be considered a candidate for reelection, is supported by a dictum of Chief Justice Parsons in Commonwealth v. Clap, 4 Mass. 168, 169; but, notwithstanding the great respect which even a dictum of that eminent judge should receive, we are unable to assent to the defendant’s contention.
The defendant’s first request for a ruling, as matter of law, that the occasion of the publication was such as to make it privileged, was rightly refused, and from this the refusal of the second and third requests necessarily followed. In determining the question whether the occasion was such as to make the publication privileged, it was unimportant, under the circumstances of this case, for the court to assume that it was made in good faith. The good faith of the defendant in making the publication had no tendency to show that the occasion was one upon which it might be made under the protection of privilege. If it had been determined that the occasion was such as to render a publication privileged, then, in determining whether this was a privileged publication, the court must have assumed that it was made in good faith, leaving the question of malice to the jury. But the court, having rightly determined that the occasion was
If it is true, as the defendant contends, that the granting of the fourth request for a ruling, and the refusal of the other requests, were contradictory, as we have held that the refusal was right, the contradiction was in the defendant’s favor, and he has no ground for complaint.
Exceptions overruled.