38 P. 130 | Or. | 1894
Opinion by
1. The defendants were indicted, tried, and convicted of the crime of libel for publishing in a newspaper called the “Sunday Mercury” a libelous article in which the name of the person alluded to therein, who, it is claimed, is the prosecuting witness, was not mentioned. For the purposes of this appeal it is unnecessary to set out the article so published, or its substance, and therefore for this and other obvious reasons it is omitted. At the trial, witnessed were called by the state who testified that on reading the article they understood, from their acquaintance with the prosecuting witness, and the circumstances alluded to in the publication, that it was intended and designed to refer to him. This evidence was admitted by the court, over the objection of defendant, and such ruling is relied upon as error. .The meaning of the defendants, and whether the libel was of and concerning the prosecuting witness, are undoubtedly questions of fact, to be determined by the jury under the instructions of the court; but the important question still remains, can the understanding or impression that persons may get from reading the objectionable article be received as evidence of such
The state, as part of its case in chief, offered in evidence and the court admitted, against the defendant’s objection, certain affidavits made by him for a continuance, separate trial, and change of venue. Just what the state expected to prove by these affidavits is not clear from the record before us; but if their admission was an error, it was manifestly not a prejudicial one, as the affidavits contained nothing which could in any way, so far as we can see, affect the substantial'rights of the defendant, or prevent a fair and impartial trial.
2. The remaining assignments of error are based on the giving and refusal of certain instructions by the trial court, and defendant contends that the court, in charging the jury, fell into three leading errors which vitiated a number of the instructions given, and led to the rejection of all that he requested. Those three alleged errors, as stated by his counsel, are: (1) “That the proprietor or manager of a newspaper is liable criminally, under our statutes, for whatever appears in the paper, although it may have been published without his knowledge or consent; (2) that, the publication being proven, the malice and intent to injure are conclusively presumed; (3) that a
3. Nor do we understand the court to have ruled that the defendant could be convicted for a libel upon the property of the prosecuting witness alone, but that, if the words used apply to his property in such a manner as to
4. This brings us to the most important question in the case, and that is whether, under our statute, it is a defense for the proprietor or manager of a newspaper, when indicted for libel, to show that the libelous article was published without his consent or knowledge. The statute provides that “if any person shall * * * publish or cause to be published of or concerning another any false and scandalous matter with intent to injure or defame such other person, upon conviction thereof (he) shall be punished,” etc.: Hill’s Code, § 1749. It is contended for the defendant that, to constitute the offense of libel under this statute, the defendant must have entertained a specific intent “to injure and defame” the prosecuting witness, and that this intent could not have existed if the publication was made without his knowledge or consent. But the law presumes that every person intends the natural and probable consequences of his own act, and, therefore, as the natural and probable consequences of the publication alleged in the indictment were to injure and defame the prosecuting witness, the law will infer that the defendant, if he caused or negligently permitted the publication, intended such consequences, although he may have entertained no special ill will or malice toward the person injured. “It is not necessary to render an act malicious,” says Chief Justice Shaw, “that the party be actuated by a feeling of hatred or ill will toward the individual, or that he entertain and pursue any general bad purpose or design. On the contrary, he may be actuated by a general good purpose, and have a real and sincere design to bring about a reformation of manners; but if, in pursuing that design, he wilfully inflicts a wrong on
5. The question then recurs as to whether the manager or proprietor of a newspaper can escape criminal responsibility solely on the ground that the libelous article was published without his knowledge or consent. When a libel is published in a newspaper, such fact alone is sufficient evidence prima fade to charge the manager or proprietor with the guilt of its publication. By the English authorities prior to Statutes 6 and 7, Victoria, chapter XCVI, it was generally held, though not without some dissent, that the presumption was not overcome by showing that the defendant was perfectly innocent of any share in the criminal publication, upon the ground that it was necessary in order to prevent the escape of the real offender behind some irresponsible person: Rex v. Gutch, 1 Moody & M. 433; S. C. 22 Eng. C. L. R. 559; Rex v. Walter, 3 Esp. 21. But, by the statute referred to, the question was put at rest, and a defendant was permitted to prove as a defense that the publication was made without either his consent or knowledge, and that it did not arise from want of due care or caution on his part. This, it is believed, is but a statutory declaration of the principles which ought to limit criminaLliability for the acts of another, and which have generally been recognized by the courts of this country in similar cases. The manager and proprietor of a newspaper, we think, ought to be held prima fade liable criminally for whatever appears in his paper; and it should be no defense that the publication was made without his knowledge or consent, unless it further appears that it did not occur through any negligence or want of ordinary care on his part. One who furnishes the means for carrying on, and derives profit from, the publication of a newspaper, and, intrusts its management to servants or employés whom he selects
So, also, in the case at bar. The fact that defendant did not see or know of the libelous article until after its publication is not in any way inconsistent with the other fact that the paper may have been under his personal supervision and control, so that his want of knowledge would necessarily imply either a criminal neglect in failing to exercise proper care and supervision over his subordinates, or criminal indifference as to the character of the articles appearing in the paper. It is entirely consistent, also, with the fact that the management of the paper and its
Affirmed.