143 N.W. 279 | S.D. | 1913
Appellant was convicted of the crime of libel, and has appealed to this court. He assigns as errors the
The demurrer specified as grounds thereof: “ (i) That said information does not state facts sufficient to constitute a public offense. (2) That said information is so indefinite and uncertain that it does not state facts that will enable a person of common understanding to know what offense is intended to be charged.”
Section . 318, Penal Code, provid.es: “Sec. 318. In all criminal prosecutions or indictments 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.” Under this section the state need neither alleg’e nor prove the falsity of the libel.
Sections 315 and 316, Penal Code, are as follows:
“Sec. 315. Any malicious injury to good name, other than by words orally spoken, is libel.
“Sec. 316. Every person who willfully, and with malicious intent to injure another, publishes any libel, is guilty of a misdemeanor.”
Under section 316 there must be proven an intent to injure, which intent may be presumed from the fact of the publication and the nature of the libelous article. The intent to injure being necessary in order to constitute the offense, such intent must be pleaded, but not necessarily in the language of the statute.
Section 228, Code of Criminal Procedure, provides: “Sec. 228. Words used in a statute to define a public offense, need not be strictly pursued in the indictment or information; but other- words conveying the same meaning may be used.”
The libel was published by appellant in a newspaper of which he was the editor. The article in question, after referring to certain reports concerning the financial standing of appellant’s paper —which reports, it is charged, were malicious, and were being circulated by the former manager, of such paper — stated that the writer “knows this ex manager’s history like a book from the time be assumed control of this paper down to the present time, and when we get ready to publish it we shall hew to the line, and let the chips fall where they may,” and closed by stating that such paper would “in a very short time be out from under the burden of debt which was loaded upon it to satisfy an alleged man’s appetite for booze and lust.” It was upon the latter quotation, omitting the words “booze and,” that the charge was based. It was conceded that the libel referred to one Smull.
At the common law the truth of a libel was, under no circumstances, a defense to a criminal charge for the publication thereof — in fact it was a maxim of the common law that “the greater the truth, the greater the libel” — the truth could not be proven even in mitigation. This rule prevailed in England as late as the year 1843, when there was enacted Lord Campbell's Libel Act, under which, surrounded by many restrictions and safeguards, a defendant could defend by showing the truth of the libel, and that its publication was for the public good. Without
This same court, speaking through its then' Chief Justice, Parker, in the case of Com. v. Blanding, 3 Pick. 304, 15 Am. Dec. 215, said: “There are certain cases in which the defendant in a prosecution for libel may acquit himself by showing an honest purpose and proving the truth of his allegations. The general principles upon which such a right depends are stated in the^ case of Commonwealth v. Clap, 4 Mass. 168 [3 Am. Dec. 212], though, without doubt, there are cases, other than those mentioned in the opinion of the court in that case, as illustrations of the general doctrine, in which the same principles will apply. The law, as laid down in the case before cited, has stood before the public nearly 20 years, and successive Legislatures must be presumed.-to have acquiesced in its wisdom and policy, or it would have been altered by the statute. The general principle decided is that it is immaterial to the character of a libel as a public offense whether the matter of it be true or false, not, as some have affirmed, because the law makes no distinction between truth and falsehood, but because the interest of the public requires that men not invested with authority by the laws shall not usurp the power of public accusation, and arraign before the public, with malicious motives, their neighbors and fellow citizens, exposing them to partial trials in forms not warranted by the Constitution or laws, and condemning them to a species of ignominy which is often a heavier punishment than the law would inflict for the offenses or misconduct of which they are thus officially accused. And surely, so long as preventive justice shall be deemed more salutary than vindictive, all wise governments will hold it necessary to curb the
The judgment appealed from is affirmed.