State v. AtkinsState v. Atkins
- Reporters:
- Before:
- Prout
The opinion of the court was delivered by
Prout, J.This indiсtment is met by a demurrer. The substance of the article, so far as material tо the question urged, seems to be this : that Mr. Eaton attended a political cоnvention while his wife lay dead at home; and it contains reflections and comments, based upon this supposed fact, which if false is libelous, as its tendency and effect is to bring him into reproach and disgrace. But the question is, whether the necessary extrinsic facts are set forth in the indictment. As to that it has been not unfrequently decided that an innuendo does not obviate the necessity of prеfatory allegations of such extrinsic facts, as are often necessary to be considered in connection with the language of the publication, in order to ascertain its sense and meaning, and which must be set forth. An innuendo does not serve this purpose. It has “ no other use than simply to ascertain the application of previous expressions to particular persons and things.” 1 Aik., 33. In no view is it an allegation of extrinsic facts or circumstances, showing thе libelous or actionable quality of the article, which is important in connection with appropriate inuuendoes, as showing a charge or conduct that is calculated to impair, in public estimation, the party aggrieved, as a man of feeling, principle and rectitude. In this indictment it will be seen, by a reference to it, that the extrinsic facts or circumstances set forth therеin, and which are inserted for the purpose of showing the sense of the languаge of the article, are imperfectly set forth. The purpose of the publication in both counts is alleged to be, to cause it to be suspected that Mr. Eaton attended a political convention on the ocсasion referred to, while Ms wife lay dead in his own house. This is the sense and meaning of the article in the mind of the pleader, *257and he makes it so by direct allusion tо a political convention, real or pretended ; but it is not alleged that there was or was not a political convention held on the day alleged, or while Mrs. Eaton lay dead at home, which we think necessary to a legаl, certain and technical statement of the case. Wharton, § 2605. This is more еspecially the case with reference to the second count, аs both the prefatory averment and innuendo refer to a political сonvention.
The other or first count is open to criticism in another partiсular. The prefatory averments of this count, like the other, allege the purpose and intent of the respondent to be, to cause it to be suspected and believed, that Mr. Eaton attended a political conventiоn under the circumstances set forth. In this count there is an omission of any innuendo еxplaining the libelous language of the article, and making it consistent with that avеrment; the language of the article of itself not importing what is ascribed to it.
. “ Abоut town all day in full blast,” although connected with an epithet characterizing Mr. Eаton’s political character, does not imply it, but only as connectеd with the fact or circumstance that a political convention had bеen held; or if such convention was not held, the fact should have been averred. In Rex v. Horne, 2 Cowper, 672, it is said, “if the terms of the writing are general, or ironical, or spоken by way of allusion or reference, although any man who reads such a writing mаy put the same construction upon it, it is by understanding something not expressed in direct words,” and this must be set forth in the prefatory averments of the indictment and explained by innuendoes. Starkie, 422. In no other way can the allusion be rendered clеar, and hence should be pointed out, as the meaning of the language is tо be determined by the jury; and “ a jury cannot take cognizance of it” unless it is set forth on the record. Dickey v. Andros, 32 Vt., 55.
The judgment of the county court is reversed, and judgment that the indictment is insufficient and that it be quashed.