State v. Avery

| Conn. | Jul 15, 1828

Peters, J.

Whether the facts stated in this information are a libel, or a solicitation to commit a greater crime, it is not. now material to enquire. If they constitute an indictable of-fence within the jurisdiction of the superior court, it is sufficient.

A libel is a malicious defamation of any person, made public by printing, writing, signs or pictures, tending to blacken the memory of the dead, with intent to provoke the living, or injure the reputation of the living, provoke him to wrath, and expose him to hatred, contempt or ridicule. 1 Hawk. P. C. cap. 73. sect. 1. 4 Bla. Comm. 150. Holt on Libels 73. Hillhouse v. Dunning, 6 Conn. Rep. 391.

Is the writing in question a libel ? It is a letter, addressed, by the defendant, to the wife of another man, stating she had played peep-abo” with him long enough ; by which the jury have found, that he meant, that she had acted libidinousiy towards him, and invited him to an adulterous intercourse and connexion with her, and sought opportunities to effect it. It appears by the information, which the jury have found to he true, that the defendant composed and wrote the letter, and • i • - i j sent it to her, with intent to insult and abuse her, and to and debauch her affections from her husband, entice her to commit adultery, and bring her into hatred and contempt. Adultery is a detestable crime, especially in a female ; the most disgraceful a woman can commit; and is punished with great severity, by our law. Stat. tit. 22. sect. 62. To say of a woman, falsely and maliciously, that she has committed this crime, is a gross slander To say that she is running about the coun try, seeking opportunities to commit adultery, renders her more contemptible and ridiculous than the crime itself; and to publish such a story, by printing or writing, is a libel But a libel is a high misdemeanor ; and it may be laid down as law, in all cases, that the allegation of an act, which the law recognizes and punishes as a crime, is libellous. Holt on Libels 188, 9. The King v. Wilkes, 2 Wils. 151.

It is said, that the letter in question is not a libel, because it was not published, by the defendant. But it is well settled, that the sending of a letter to the party, filled with abusive language, is an indictable offence, became it tends to a breach of the peace. It has, indeed, been a matter of doubt whether the sending of such a letter to another would support an action for a libel, because there is no publication. But the sending of such a letter, without other publication, is clearly an offence of a public nature, and punishable as such, as it tends to create ill-blood, and cause a disturbance of the public peace. Holt on Libels 239. 2 Swift’s Dig. 341. 1 Hawk. P. C lib. 1. cap 73. sect. 11. Bac. Abr. tit. Libel. B. Wooton v. Edwards, Poph. 140. Hick’s case, Hob. 215.

It is said, that a libel against an individual is not a subject of indictment. But there cannot be any doubt, says Hawkins, {ubisupra) but that a writing, which defames private persons only, is as much a libel, as that which defames persons entrusted with a public capacity ; and Lord Coke informs us, that “ every libel, which is called famosus libellus, is made either against a private man, or against a magistrate or public person. II it be against a private man, it deserves a severe punishment.” The case de Libellis Famosis, 5 Rep 125. The late Ch. J. Swift has informed us, that prosecutions of this k:nd ha ve not been introduced into this state ; but he adds, that “ the common law on this subject is in force here.” 2 Swift’s Dig. 340. It is somewhat remarkable, that his Honor should so soon have forgotten the prosecutions against Selleck Osborne, at Litchfield, in 1806, and Noah A. Phelps, at Hartford, in 1818 !

But, admitting that the letter in question is not a libel, it is certainly a solicitation to commit a greater crime. It explicitly invites Mrs. White to make an assignation to meet the defendant at his house, or at some other place, to commit adultery with him. I have already shewn, that adultery is a very great crime, once capital, now punishable like most other felonies. Stat. revis. 1650 tit. Capitax, Laws, sect 8. — ed. 1808. p. 42. n. — revis. 1821. tit. 22. sect. 62. And an attempt to commit, or a solicitation of another to commit such a crime, must be, at least, a high crime and misdemeanor ; and we have already said, that a high crime and misdemeanor is nearly allied and equal in guilt to felony, (State v. Knapp, 6 Conn. Rep. 415.) whereof the superior court has cognizance, by statute and by common law. Stat. tit. 22. sect. 98. State v. Danforth, 3 Conn. Rep. 112

In Rex v Higgins, 2 East 5, the defendant was indicted for soliciting and enticing a servant to steal the goods of his master; and the defendant contended, that as nothing was done, no crime was committed. The judges delivered their opinions seriatim, and unanimously pronounced it an indictable offence. “A solicitation or inciting of another,” said Le Blanc, J., “ by whatever means it is attempted, is an act done ; and that such an act done with a criminal intent, is punishable by indictment, has been clearly established, by the several cases referred to.” “ All such acts or attempts,” said Lawrence, J., “ as tend to the prejudice of the community, are indictable. Then the question is, whether an attempt to incite another to steal, is not prejudicial to the community ; of which there can be no doubt.” As to the offence itself, it must be admitted, th^t an attempt to commit a felony, is, in many cases at least, a misdemeanor. In proof of this, we may instance the common cases of an attempt to rob or to ravish, which are indictable offences in every day’s practice. But further, an attempt to commit even a misdemeanor, has been shewn, in many cases, to be itself a misdemeanor. I close this topic in the language of Lord Kenyon, Ch. J., which, mulato nomine, is ad idem. The offence is of the most serious kind, no less than that for his own wicked gratification, he solicited and invited a woman to commit adultery ; and can it be a question, in a country pi'oiessing to have laws subservient to justice and morality, whether this be an offence ? But it is argued, that a mere intent to commit evil ,. , i , , „ is not indictable, without an act done ; but is there not an done, when it is charged, that the defendant solicited another to commit adultery ? The solicitation is an act; and God forbid, that it should not be considered as an offence.

I am of opinion that the information is sufficient; and advise, that the motion in arrest be overruled.

The other Judges were of the same opinion, except Brain-aeb, J., who was absent.

Information sufficient.