12 N.Y.S. 688 | N.Y. Sup. Ct. | 1891
Lead Opinion
In June, 1889, the grand, jury of Wayne county at a court of oyer and terminer found an indictment against the defendant, the formal parts of which are as follows: “The grand jury of the county of Wayne by this indictment accuse Thomas F. Stark, of the city of Rochester, in the county of Monroe, of the crime of publishing a libel, committed as follows, to-wit: That the said Thomas F. Stark, at the town of Savannah, in the county of Wayne, on or about the 5th day of March, in the year of our Lord one thousand eight hundred and eighty-nine, and prior to the date hereof, wrongfully, unlawfully, and maliciously did publish of and concerning one Asa T. Soule, and of and concerning the part alleged to have béen taken by him, said Asa T. Soule, in a certain riot which occurred at and in the city of Cimarron, in the county of Gray, and state of Kansas, on the 12th day of January, A. D. one thousand eight hundred and eight-nine, in which said riot, and during the continuance thereof, certain guns and pistols, then and there being loaded with powder and leaden balls, and held in the hands of certain person or persons to the grand jury aforesaid unknown, who were then and there engaged in said riot, were shot off and discharged by the said persons so holding them as aforesaid, by reason and in consequence of which said holding in the hands, shooting off, and discharge of said guns and pistols so loaded as aforesaid one man was killed and eight other men each received and suffered gunshot wounds in and upon or about their respective bodies,—a false, scandalous, and malicious libel in the words and of the tenor following.” Then it contains a copy of the alleged libel. The indictment was sent, to the court of sessions, and in December of the same year the defendant was tried upon it in that court. He was convicted and sentenced to imprisonment in the Monroe county penitentiary for 10 months. A stay was obtained, and the defendant appealed to this court.
The case shows that the defendant demurred to the indictment upon the ground that no criminal offense was alleged. The court overruled the demurrer. On the trial evidence was objected to on the same ground and overruled, to which exception was taken by the defendant’s counsel. A motion in arrest of judgment was also made upon the same ground, which was denied, and exception taken. The evidence showed that the defendant lived in the city of Rochester, and that Soule lived either in Rochester or Savannah. It also tended to show that in February, 1889, the defendant sent to Ammon S. Farnum, a resident of Savannah, Wayne county, a newspaper containing the alleged libel set out in the indictment. The defendant objected to the evidence upon the ground that the facts were not alleged in the indictment, and the other grounds above stated. The objections were overruled, the defendant excepted, and the article in the newspaper was read in evidence. The evidence also tended to show that Farnum wrote to the defendant and got the newspaper at the request of Asa T. Soule, the person libeled; also, that the purpose was to obtain evidence to secure the indictment and conviction of the defendant. On the trial the defendant was examined as a witnesss, and asked, on his own behalf, this question: “Did you have any malice or mali
The indictment omits to state, as before suggested, whether the alleged libel was spoken, written, or printed. It also fails to state the manner or mode of publication; whether he wrote to Farnum, or sent him the newspaper, or went to his residence and talked with him, is nowhere stated. It is not even stated that he published it to Farnum, or to whom, or in what way, he published it. Nor is it alleged that any of the above omissions were unknown to the jurors. The cases above quoted throw light upon this branch ■of the case, and tend to show that all the particulars requisite to show the exact character and nature of the offense must be clearly stated. But the proposition has been decided in numerous analogous cases. In prosecutions for the sale of liquor it has been repeatedly held that the name of the person to whom sales were made, or that it was unknown to the jurors, must be stated. Com. v. Thurlow, 24 Pick. 378; Com. v. Thornton, 14 Gray, 41; Com. v. Murphy, 2 Gray, 513. In People v. Burns, (decided under the new Criminal Code,) 6 N. Y. Supp. 611, the indictment charged the defendant with selling impure milk, but there was no statement showing to whom the sale was made. The court held this to be a fatal defect. Section 275 of the Code of Criminal Procedure shows that an indictment must contain “a plain and concise statement of the act constituting the crime, without unnecessary repetition.” The act, in this indictment, is not stated at all. It merely alleges the publication of a libel, which is a mere conclusion of law. But it contains no plain or other statement of the facts, how it was published, or in what way the act was criminal. The question whether a publication is or is not a libel depends upon the facts. The term “libel,” withoutfurther allegations, involves simply a legal propositi on. In Butler v. Viele, 44 Barb. 166, it was held that, where the complaint alleged that a deed was procured by false and fraudulent representations and practices, and by undue and improper influences, it stated mere conclusions of law, and failed to show a cause of •action. To the same effect are all the cases. Bonnell v. Griswold, 68 N. Y. .294; Cohn v. Goldman, 76 N. Y. 284; Institution v. Bitter, 87 N. Y. 250. The indictment in the case at bar simply charges the publication of a libel, without alleging any facts. It is obvious, therefore, that the indictment in the two particulars above stated is fatally defective. In addition to this, a serious question arises whether the record of conviction would be a bar to another prosecution on account of its vagueness and uncertainty; it being in evidence that numerous papers might be sent to different persons in different localities and counties, and that the defendant might be guilty of a great -number of criminal offenses. But the indictment in the case at bar throws .no light upon which of these various offenses the indictment was founded. Phelps v. People, 72 N. Y. 349, illustrates the necessity of this certainty.
The publication, as the statute above quoted shows, to be libelous, must be malicious. Malice imports an evil intent or wish or design to vex, annoy, or injure another person. Section 718, Pen. Code. To constitute a crime, there must in all cases be a.criminal intent. Reg. v. Mullins, 3 Cox, Crim. Cas. 526; People v. Farrell, 30 Cal. 316; Town of St. Charles v. O’Mailey, 18 Ill. 407; Campbell v. Com., 84 Pa. St. 197; Genetv. Mitchell, 7 Johns. 130,Peoples. Terrell, 11 N. Y. Supp. 364; People v. Sullivan, 4 N. Y. Crim. R. 497. At one time it was looked upon as doubtful whether the party accused could swear directly as to his intent when that question was involved in the issue. In People v. Baker, 96 N. Y. 340, where the indictment was for obtaining property under false pretenses, the defendant was asked by his counsel to .state what was his intention in receiving the $575. This was objected to,
Macomber, J., concurs.
Concurrence Opinion
I fully concur in the opinion of Justice Corlett to the effect that the indictment in this case was fatally defective for the want of a sufficient description of the offense sought tó be charged. “An indictment is an accusation in writing, * * * charging a person with a crime.” Code Crim. Proc. § 254. “It must contain a plain and concise statement of the act constituting the crime.” Id. § 275. The crime sought to be charged in this case was the publication of a libel. Pen. Code-, § 243. In the indictment that crime is charged, in terms, without any statement of the act of the defendant which constituted the crime. The words and tenor of the alleged false, scandalous, and malicious publication are set out in the-indictment, but there is no statement of the manner in which the publication was made. Such a statement was essential to the indictment, because the manner of the publication was of the essence of the crime. It is not every false, scandalous, and malicious publication which constitutes a libel. By statutory definition such publication must be “by writing, printing, picture, effigy, sign, or otherwise than by mere speech.” Id. § 242. .There is no allegation in this indictment that the publication was by either of the means specified, or that it. was otherwise than by mere speech. Counsel for the prosecution refers to-section 289 of the Code of Criminal Procedure as justifying the omission of a more full description of the offense; but it is very clear that the provisions of that section have no application to the question here considered. The section reads: “An indictment for libel need not set forth any extrinsic facts for the-purpose of showing the application to the party libeled, of the defamatory matter on which the indictment is based; but it is sufficient to state generally that the same was published concerning him; and the fact that it was so published must be established on the trial.” It is plain that the sole purpose and effect of this provision is to dispense with-the allegation of extrinsic facts of
