122 Cal. 84 | Cal. | 1898
Defendant was informed against in the county of Santa Clara for the crime of libel alleged to have been committed December 5, 1896, and was by the jury convicted. Judgment was accordingly entered, and the defendant was sentenced to he imprisoned in the county jail for the term of one year. Defendant appeals from this judgment and from the or
1. It is contended by defendant that the corpus delicti in this case was either that he was editor, proprietor, or publisher of
The law makes a wide distinction between confessions and admissions. This was pointed out in People v. Strong, 30 Cal. 151. “A confession in criminal law is the voluntary declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation he had in the same.. The word 'confessions’ is not the mere equivalent of the words 'statements or declarations.’ ” The term “confessions” is re-. stricted to acknowledgments of guilt. (1 Greenleaf on Evidence, 170.) This court said in People v. Parton, 49 Cal. 632: “An admission of a fact, not in itself involving criminal intent, is not to be rejected as evidence (without the preliminary proof) merely because it may, when connected with other facts, tend to estab-, lish guilt.” (See People v. Le Roy, 65 Cal. 613.)
The alleged libel was published December 5, 1896, in the “Illustrated World.” It appeared from the evidence that this was a weekly journal published at 623 Montgomery street, San Erancisco, and was circulated in Santa Clara county. The article in question was read in Santa Clara county by several witnesses on the day of the issue and soon thereafter. The heading of the article read: “What our country friends would like to know,” and under the subhead “San Jose” appeared the alleged libelous publication. The witness Bishop, who had read the article, in. reply to the question, “State what you understood by it in refer-.
The question of fact chiefly discussed by counsel is, whether the evidence showed that defendant was the editor or proprietor or publisher of the paper; and it is insisted that he was not ■shown to have had any business connection whatever with the paper, but that the sole owner, editor, and proprietor was one A. S. Burroughs. A lease of the premises, 623 Montgomery street, -San Francisco, where the paper was published, executed by defendant and Burroughs July 23, 1896, and by the trustees of the Floyd estate, was in evidence. In it Burroughs and defendant vtere described as “proprietors of the ‘Illustrated World Publishing Company,’ of the city and county of San Francisco, state of California, parties of the second part.” The lease was “for the term of twelve months from the tenth day of August, 1896.”
It contained the following provision: “And said parties of the second part will use and employ said premises solely for the purpose of their business as publishers of the Illustrated World Publishing Company.” The evidence is that Burroughs and defendant both signed the lease as the parties of the second part.
We have given substantially all the evidence in the case for the reason that it is earnestly contended that there is nothing in any way tending to establish defendant’s guilt except his own admissions, and that he cannot be convicted on these alone; and, furthermore, that the positive undisputed evidence of Salmon and Burroughs is that defendant had no interest whatever in the paper on December 5th, and took no part in its management. It is manifest, we think, that the facts, in their nature admissions tending to show that defendant had an interest in the paper as proprietor or manager, do not come within the category of confessions as understood in criminal law. The lease is, in itself, strong evidence that defendant was a proprietor with Burroughs, for he therein so describes himself, and he agrees over his own signature that they "will use and employ said premises as publishers of the ‘Illustrated World’ Publishing Company.” The admission made by defendant in this lease was not of a fact in itself involving criminal intent. There was nothing in the admission which showed an intention to engage in the publication of a paper containing libelous charges against reputable citizens, and yet the admission was such as, connected with other facts, tended to establish guilt and was admissible. (People v. Parton, supra.) And the same may be said of other admissions and conduct in the nature of admissions. They were not confessions of guilt. As to the lease, Burroughs explains why it was signed by defendant, and if his evidence is to be received as conclusive it would appear therefrom that defendant
2. It is claimed that the venue was not proved (although it is admitted that the article was published in Santa Clara county) because there is no evidence that defendant published it in Santa Clara county.
Defendant concedes that a person may be prosecuted for libel in any county where the paper is circulated by him or through his agency, but it is claimed that it must be shown that he circulated or caused it to be circulated in the county where the prosecution is conducted. Citing Odgers on Libel, *580, *581, where it is said that: “It is necessary to further prove, in a criminal case, that the prisoner published the libel in the county in which the venue is laid.” If defendant means that it must be shown that he took the paper to Santa Clara county and there circulated or caused it to be circulated, or that he must be shown to have directed the paper to be sent there, before he can be convicted, we think he mistakes the law. If defendant, being the proprietor, parted with the immediate custody of the paper in San Francisco under circumstances such as exposed it to be read by other persons, it matters not how it reached San Jose. When he parted with control of the libel, it was deemed to be published, so far as the defendant was concerned, wherever it found its way, unless it passed into the immediate possession and control of the person or persons affected by it. It was not
3. It is claimed that the court erred in overruling defendant’s objection to the question: “Q. What did you understand by the language of the paper in relation to Judge Reynolds and Attorney Wright?” The court overruled the objection and defendant excepted. The district attorney thereupon reframed his question, the answer to which was on motion of defendant’s attorney stricken out. The record then shows: “Mr. Beasely (district attorney)—Don’t state to whom you understood it to refer, but state what you understood by it in reference to any person. A. You are trying to get the word 'crookedness’—what it means? Q. Yes, that is what I am trying to get at.” The witness then gave what he understood by the word “crookedness.” Defendants made no objection to the question or answer, and we think cannot now be heard to object.
4. The next errors assigned (paragraphs IV and V of defendant’s brief) cannot be considered because the record fails to show that defendant took an exception to the ruling.
5. Finally, it is claimed that the evidence is insufficient to sustain the verdict, because there is no testimony whatever that the defendant wrote, or printed, or published the article, or was manager of the paper.
We have already seen that there was evidence sufficient to justify the jury in finding that defendant was a proprietor of the paper at the time the libel was published. It was not necessary to prove that defendant personally wrote or printed the article, nor that he with his own hands, or by his personal direction, circulated it. It was sufficient upon these points to show that he knowingly parted with the immediate custody of the paper
We advise that the judgment and order be affirmed,
Britt, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
McFarland, J., Temple, J., Henshaw, J.
Hearing in Bank denied.