State v. Elder, No. 1671; No. 1672

No. 1671; No. 1672 | N.M. | Sep 10, 1914

OPINION.

EAYNOLDS, District Judge

1 (after stating the facts as above). The appellee contends that the provisions of the Constitution, both in regard to the ■ substance of the laws passed prior to the adoption of the Constitution in 1912, and the mode and manner of passing the laws and their form, apply -to all laws of New Mexico, whether passed prior or subsequent to the adoption of the Constitution. We cannot agree with the appellee in this contention. Prior to the adoption of our -Constitution, there was nothing in the the Organic Act or in the laws of Congress relating to the territory of New Mexico which forbade the repeal of an act repealing a law and the revival of the original law by such repeal. In fact, it has been expressly held by this court in the case of Milligan v. Cromwell, 3 N. M. 557, 9 Pac. 359, that unless it is made clear by the law repealed in the repealing act that the original law is not thereby to be revived, the original act is revived. The act of 1905, Chapter 13, specifically revived the law of 1889.

Again, it is urged that the law of 1889 is unconstitutional and void, because of Article 4, Section 18, of the Constitution, which provides:

“No law shall be revised or amended, or the provisions thereof extended by reference to its title only; but each section thereof as revised, amended or extended shall be set out in full.”

It is also urged that the law of 1889 is unconstitutional and void because it is in conflict with Article 4, Section 16, of the Constitution, which, among other things, provides :

“The subject of every bill shall be clearly expressed in its title, and no bill embracing more than one subject shall be passed.”

2 The answer to these contentions is that the provisions of the Constitution are prospective and not retrospective. Cooley’s Constitutional Limitations (5th Ed.) pp 77, 445; 8 Cyc. pp. 735, 744. To hold otherwise would be to repeal all the laws of New Mexico passed prior to 1912 in which the form of the acts and the manner of passing the same-do not conform to the method subsequently prescribed by the Constitution, and to bring about a chaotic condition of affairs in the earlier legislation of the territory of New Mexico. Our Constitution provides (article 22, section 4) “All laws of the territory of New Mexico in force at the time-of its admission into the Union as a state, not inconsistent with this Constitution, shall be and*remain in force ag the laws of the state until they expire by their own limitation, or are altered or repealed, * * * ” but it nowhere-provides that all prior laws not passed in conformity with the regulations made for the passing of laws by the future-Legislatures of New Mexico shall be unconstitutional. The provisions of the Constitution heretofore set out refer to the manner and form of passing laws in the future, and the last provision quoted, Article 22, Section 4, refers to a conflict, if any, in the substance of any prior laws with the Constitution. It cannot be seriously contended that the framers of the Constitution intended that provisions looking to the passage of future laws, noncompliance with which constitutional provisions should render invalid such future laws, could also relate to former laws passed by the territorial assemblies of New Mexico, especially since such intention was not expressed in the instrument itself.

This whole question is well covered in the case of Ex parte Burke, 59 Cal. 8, 43, Am. Rep. 231, where the following language is used:

3 “At the time the law in question was passed there was no constitutional objection to special and local legislation. This was held by the Supreme Court in the very early case of Ryan v. Johnson, 5 Cal. 87" date_filed="1855-07-01" court="Cal." case_name="Potter v. Knowles">5 Cal. 87, and the same doctrine is again laid down in the case of People v. C. P. R. R. Co., 43 Cal. 398" date_filed="1872-04-15" court="Cal." case_name="People v. Central Pacific Railroad">43 Cal. 398. When the act was passed it was a valid act, even conceding, for the purposes of the argument, that it was a special law, as is claimed in this case. The question therefore arises, was the act abrogated' by the provision of the new constitution referred to above? The language of Section 25, Article 4, is that: ‘The Legislature shall not pass local or special laws.’ The constitutional inhibition manifestly applies to future and not to past legislation. The provision is purely and simply prospective in its operation, and the words will not justify any other construction. It did not therefore operate as a repeal of acts passed by the Legislature years before the Constitution went into effect, but merely put a stop to all future legislation of that objectionable character. If authority were required in support of this view, it will be found in the following cases: Allbyer v. State, 10 Ohio St. 588; State v. Barbee, 3 Ind. 258" date_filed="1852-01-22" court="Ind." case_name="State v. Barbee">3 Ind. 258; Hingle v. State, 24 Id. 28; Cooley’s Const. Lim., 76.”

It appears by inspection of the law of 1889 (Chapter 11, Section 22) that the truth in -indictments under -the libel law can. only be pleaded in justification in certain cases, and that by Article 2, Section 17, of the Constitution it is declared, in the Bill of Bights, that-:

“In all criminal prosecutions for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted.”

4 The Act of 1889 .therefore is in conflict with the Constitution of 1912 in so far as it limits the inquiry into the truth in certain cases, as a defense in criminal prosecutions for libel, as the declaration in the Constitution extends the right to give the truth in evidence,, as a defense, in all cases of criminal libel. The declaration contained in the Constitution being the controlling law, the limitation contained in the law of 1889 is repealed, and the truth may be given as a defense in all prosecutions for li bel.

5 It is contended that the indictments in these cases do not state that the alleged libel was circulated, nor that the matter was read or seen by third persons. We do not deem this contention of any weight, as the word “publish” means, primarily, to make known and has the same significance as the Word “circulate”; nor is it necessary to set out in the indictment the phrase that the alleged libelous matter was read or seen by third parties. Words and Phrases, Vol. 7, p. 5847; United States v. Williams (C. C.) 3 F. 484" date_filed="1880-07-01" court="E.D.N.Y" case_name="United States v. Williams">3 Fed. 484, 486.

The charges in' the indictment in case No. 1671, as heretofore set forth, among other things, allege that the prosecuting witness “is an ingrate and one whom all self-respecting persons can but despise on account of his actions towards his father,” and that he, the prosecuting witness, “is an Unprincipled son.” The charge in the indictment in case No. 1672 states that the prosecuting witness ¿“is an imbecile,” “a living moral coward,” “a man who has about as much regard for the truth as an infidel has for the Bible,” and “a man whose life has been a failure and' á farce.” It is contended that these words are not libelous per se, but we deem the contention untenable, as the 'státute defines what is libelous, and it is immaterial whether the matter is libelous per se or not.

7 The only question for this court to determine is- whether the alleged libelous matter herein set out comes within the statutory definition. It is conceded that if the statements are libelous, they must come within Subdivisions 2 and 3 of Section 7 of the Laws of 1889, which provides as follows: i

“Sec. 7. The written, printed or published statement, to come within the definition' of libel, must convey the idea either: (1st.) that the person to whom it refers, has been * * * (2nd) '* * * guilty of some act or omission which, though not a penal offense, is disgraceful to him as a member of society and the natural consequence of which is to bring him into contempt among honorable persons, or 3rd.) * * * Has a moral vice, or physical defect or disease, which renders him unfit for intercourse with respectable society, and as such should cause him to be generally avoided.”

Unless the alleged libel is not to be taken in its ordinary and common meaning, it is difficult to understand why* such charges as these do not bring the parties so charged into contempt among honorable persons and in effect declare that he has a moral vice. It is urged upon us by the appellee that this language has a humorous aspect and that the articles were a joke not to be taken seriously. We have nothing before us but the language used, which, in its ordinary and common meaning, certainly" conveys' and must have been intended to convey the idea that the prosecuting witness has been guilty of an act or omission, which, though not a penal offense, is disgraceful to him as a member of society, and the natural consequence of'which' is to bring him into contempt among honorable persons'. This' remark also applies to the charge that he is an'unprincipled son 'and that hé is a living moral coward and has no more respect for the truth than an infidel has' for the Bible. These charges may have been intended tó be used' in a humorous sense, but, as was aptly said in State v. Brady, 44 Kan. 435" date_filed="1890-07-15" court="Kan." case_name="State v. Brady">44 Kan. 435; 24 Pae. 948, 9 L. R. A. 606, 21 Am. St. Rep 296:

6 “The want of actual intent to vilify is no excuse for libel, and if a man deems that to be right which the law pronounces wrong, the mistake does not free him from guilt. Curtis v. Mussey et al, 6 Gray (Mass.) 261; 1 Bish Crim. Law, Sec. 309; Reynolds v. United States, 98 U. S. 145 (25 L. Ed. 244).

8 It is urged .that the indictment in libel should set out the whole publication, but we believe this ground untenable, as it is sufficient if parts of the publication which are alleged to be libelous are set out in full. 25 Cyc. 578.

9 Where an indictment in libel charges that the alleged defamatory matter is false, it is sufficient in law, on demurrer to the indictment, and it need not allege that, if-true, the matters were not published with good motives and justifiable ends, as such negative statement is not such a proviso in the law as is required to be negatived in the indictment, but is a matter of defense on the trial.

Those other grounds of demurrer, not considered in this opinion, we do not regard as worthy of discussion.

The judgment of the court below is therefore reversed and the cause remanded, with instructions to proceed in accordance with this opinion.