66 Md. 205 | Md. | 1886
delivered the opinion of the Court.
The appellant was indicted for libel, in the Circuit Court for Baltimore County, and was found guilty. At the trial one exception was taken to the exclusion of certain evidence offered in defence which was made the basis of this appeal; and properly speaking the correctness of the Court’s ruling on the evidence is the only question legitimately before us. But by agreement of the counsel for the State and defence the ruling of the Court below on the demurrer to the indictment whereby tbe same was overruled, this Court was to be asked to pass thereon. That question is not regularly before us and could not be, except on writ of error after final judgment in the cause, which has not yet been rendered, the same having been suspended under the statute until the determination of the appeal. In this instance, we will pass on the question raised by the demurrer, in deference to the wishes of the respective counsel, and to save the necessity of a writ of error after final sentence. The practice however in this case by the State, in consenting to request the hearing of the question raised by the demurrer irregularly, cannot be commended, and ought to be discountenanced; therefore our decision of the question must not be taken as a precedent to be quoted, or indication that we will hereafter pass on a like question' similarly presented, after this expression of our disapproval of the practice.
The indictment charges the Hon. David Eowler to be a Judge of the Circuit Court for Baltimore County before and at the time of the composing and publication of the “scandalous, malicious and defamatory libel,” and at the finding; and that the defendant “ well knowing the premises aforesaid, unlawfully and maliciously devising
In support of the demurrer it is contended, by the traverser’s counsel, that the gravamen of this indictment is, that by the alleged libelous publication, the administration of justice is brought into contempt. Treating it as nothing but a libel upon judicial proceedings, the argument is, that the indictment does not set forth with sufficient particularity in what regard the administration of justice was held up to contempt; that it does not set out the place
If this indictment was nothing more than what the trawerser’s counsel contends that it is, there would be much force in the exceptions to its sufficiency; but as we do not think the indictment is, or was intended to be, what the counsel contends, the objections are not so impressive. It distinctly charges Judge Fowler to be a Judge of the Circuit Court for Baltimore County, and alleges that the publication, charged to be libellous, was intended to '“ traduce, defame and vilify ” him as such Judge. It holds him up as such Judge to contempt and scorn, by charging him to be guilty of something which would justify his impeachment and indictment. By this vilification of a Judge who administers justice in Baltimore County, it further alleges that scandal is thrown upon the administration of justice through him. The theory of this indictment is that the libel is against Judge Fowler in his official character and capacity; for the purpose of injuring him, in that official station, in the esteem of the
Lord Hale, in his Pleas of the Crown, page 168, says: “an indictment is nothing more than a plain, brief narrative of an offence committed by any person, and the necessary circumstances that concur to ascertain its fact and nature.” The offence here charged is libel, and the question is, are the “ necessary circumstances ” mentioned in this statement by Lord Hale found in this indictment so that it is sufficient to warrant a judgment thereon.
All authorities agree that any written words are libellous which impute to a man fraud, dishonesty, immorality, vice, crime or dishonorable conduct, or that he be suspected of such conduct, or which suggest that he is suffering from any infectious disease, which has a tendency to injure him in his office, profession, calling or trade; or which holds him to contempt, hatred, scorn or ridicule. Odgers on Libel and Slander, 21; 3 Chitty Crim. Law, 295, et seq.; White vs. Nicholls, 3 Howard U. S., 266; and Negley vs. Farrow, 60 Md., 158. It cannot be doubted that enough circumstances must be stated in the indictment, by way of inducement, as are necessary to explain the meaning of
In section 619 of Bishop’s Directions and Forms, it is said, that the precedents for libel so abound in what is certainly surplusage, that the Courts have not had occasion to pass on all the words, so as to enable one to say on authority what maybe safely omitted, but .that it may be accepted as a safe rule, in the language of a learned English Judge in a famous case of libel, “that whatever circumstances are necessary to constitute the crime must be set out; all beyond are surplusage.” Mr. Odgers in his work on Libel and Slander, page 574, says “this exposition, of Lord Chief Justice De Grey, in the case of Rex vs. Horne, is universally considered the best and most perfect exposition of the law on the subject.” We refer to this case of Rex vs. Horne, Cowper’s Reports, 683.
It is well settled, that it is not necessary to set out the whole paper in which the libellous matter is contained, but only such parts thereof as may be relied on as libellous, 3 Chitty’s Crim. Law, 304; Heard’s Crim. Pleading, 205, et seq.; and it is not necessary to be more specific than the publication itself. Melton vs. The State, 3 Humph., 389. If the indictment sets forth on its face that which is of itself libellous, it is sufficient without circumstances, or innuendoes more than needful to connect it with the person libelled. State vs. White, 6 Iredell, 418.
Bringing this indictment to the test of these several principles it is abundantly clear, that it must be pronounced sufficient. Having charged that Judge Eowler is Judge and of what Circuit, and that with a view of
In respect to the conclusion of the indictment, on which stress has been laid by the appellant’s counsel, it may be said, that so far'as the omission to allege in the conclusion, that what had been set forth as published, had redounded to the damage of Judge Eowler, is concerned, it is wholly immaterial; and as to the allegation that it was “ to the great scandal and disgrace of the administration of justice in Baltimore County, and in contempt of the State of Maryland and its laws, and to the evil example of all others in like case offending,” we may add, that they are wholly unnecessary, and may be rejected as surplusage. Though part of these words are found in many forms they are not found in all; and though the allegation in conclusion that it is to the damage of the person libelled is to be found in most of the forms, the general form given in 3 Chitty’s Crim. Law, 877, and in 2 Archbold’s Crim. Practice and Pleading, 1038, do not contain it. The forms in Bishop’s Directions and Forms contain it; and the others also found in this indictment; but on page 621 of that book they are included in brackets, and are said by anote to be “unnecessary.” In section 157 of 1 Bishop’s Crim. Procedure, these endings are all stated to be immaterial and may be safely omitted in all common law indictments. Qhitty is quoted, and referred to as authority for that statement, than whom there is no better. In 2 Hale’s P. C., 188, it is laid down that the proper conclusion for all common law indictments is “contra pacem domini regis.”
Einding the indictment sufficient, we turn to the ruling on evidence because of which this appeal was taken, and. we find the Court ruled rightly. The evidence offered, was, avowedly, only to show that the defendant had been led into an honest mistake of fact, and thereby was misled as to the publication set out in the indictment. Nothing short of evidence tending to show the truth of the charge made can be admissible under our statute, allowing the truth to be given in evidence in justification under the general issue.
An evil intent is a conclusive inference and presumption of law from the publication of the libellous matter without excuse. 2 Bishop’s Cr. L., secs. 922-923; Com. vs. Snelling, 15 Pickering, 337; 2 Lewis, C. C., 237, and Negley vs. Farrow, 60 Md., 158. In Massachusetts there exists a statute respecting justification similar to ours, and in Com. vs. Snelling, already cited, evidence tending to show an honest mistake of fact was rejected, because it did not tend to prove the truth of the publication, and therefore did not tend to support the plea of not guilty.
Judgment affirmed.