Smith v. State

32 Tex. 594 | Tex. | 1870

Lindsay, J.

To charge a person with being “ a hireling murderer,” if falsely and maliciously made, is slander, for which a civil action would lie against the utterer. If it be written and published, it becomes a libel, which is made an indictable offense by the Criminal Code of Texas, as it was at the common law. When the defamatory or libelous matter is written or printed and published, malice, or the intent to injure, by the Code, is presumed, and the burden of proof is thrown upon the party charged, to show that the utterance or publication was made under such circumstances as to bring it within the class of privileged communications. Such communications are allowable from the peculiar relations of the parties, or from considerations of public policy. But, unless upon the trial the evidence discloses that the libelous matter charged falls within the privileged communications, the malice or intent to injure is presumed. Nor can this be rebutted by proof of the truth of the defamatory statement on the trial under indictment. It is only in prosecutions for the publication of papers investigating the conduct of officers, or of persons acting in a public capacity, and where the matter is proper for public information, that the truth may be given in evidence. In libels upon private individuals, however true the charges may be,, their publication against private individuals incites and provokes the mischief designed to be repressed by the public prosecution of libels.

The publication of a libel and its circulation, is made when it is written, printed, and sent and delivered, either to the person defamed or to any other person, unless the matter so sent and delivered comes under the class of privileged communications. There is nothing in this record to show that this charge and publication were justified by any such peculiar relations or considerations of public policy. Simply because a communication is confidentially made, it does not place it in the class of privileged communications. There must be some considerations of moral duty or of public policy connected with it, in order to range it in the class of privileged communications. Here confidential communications of such a character are, therefore, always made at the peril of the publisher, if they fail to come within that defined class. The exception, therefore, taken to the ruling of the court in excluding the evidence offered by the defendant, cannot avail. The fact of publication and of circulation was established incontestibly, by writing the letter, directing it and putting it in the mail, to be transmitted to the county of Galveston, where the bill of indictment was found. The proof, if introduced, would have been wholly immaterial, and would not have conduced to rebut the evidence of publication and circulation already made manifest, and by the interrogatories propounded to the witness, the answers to which were excluded by the court, was a confession of tjie writing and publication of the libel. The common law principles governing cases of libel are fully adopted in our Criminal Code. And when an individual either writes or prints-a libel against a private person, or even has such libel in his possession, as a moral duty he had better burn it, and for perfect legal security he will always find his advantage in such a disposition of it.

There being no errors in law committed by the court on the trial, and the jury being made by the Criminal Code the triers of the questions, both of the malice or intent to injure, and of the publication, this court would not be justified in disturbing the verdict. The judgment of the Criminal Court is therefore affirmed.

Affirmed.