CHAPTER LXIII. CRIMINAL LIBEL. 557. The Term "Libel" Defined. 561. What the Indictment must Show. 562. Outline of Plaintiff's Proofs. 563. A Restriction upon Plaintiff's Evidence Noted. 565. Malice as an Element-Presumptions as to. 567. Rules as to Justification. 568. Repetition of a Slander. 569. Malice, how Proved. 570. Evidence of Intent Material. 571. Accused may Swear to his Intent. 572. Fair Criticism Allowed. 573. Rules as to Editors and Reporters. 574. Miscellaneous Authorities on the Subject. 557. The Term Defined.-There are many definitions of libel. The one by Alexander Hamilton in his argument in People v. Croswell, 3 Johns. Cas. 203, viz: "A censorious or ridiculing writing, picture or sign, made with malicious intent towards government, magistrates or individuals," has been often referred to with approval; but, unless the word "censorious" is given a much broader signification than strictly belongs to it, the definition would not seem to comprehend all cases of libelous words. The word "libel," as expounded in the cases, is not limited to written or printed words which defame a man, in the ordinary sense, or which impute blame or moral turpitude, or which criticise or censure him. In the case before referred to, words affecting a man injuriously in his trade or occupation, may be libelous, although they convey no imputation upon his character. "Words," says Starkie, are libelous if they affect a person in his profession, trade or business, by imputing to him any kind of fraud, dishonesty, misconduct, incapacity, unfitness or want of any neces 66 sary qualification in the exercise thereof." Starkie, Slander & Libel, & 188. Libel is the willful and malicious publication, in a permanent and visible form, of some matter tending to injure the reputation of another. Chaddock v. Briggs, 13 Mass. 248, 7 Am. Dec. 137. See 4 Bl. Com. 150; 2 Whart. Am. Crim. L. (8th ed.) § 1504; 1 Hawk. P. C. chap. 73, § 1. Of deceased persons (Com. v. Clap, 4 Mass. 163, 3 Am. Dec. 212; Anonymous, 5 Coke, 125a) if done to bring the family into contempt, stir up hatred, or excite to a breach of the peace. Com. v. Taylor, 5 Binn. 281; Rex v. Topham, 4 T. R. 127; 2 Bishop, Crim. L. (6th ed.) § 905. It is a crime at common law (see Com. v. Chapman, 13 Met. 68; Com. Holmes, 17 Mass. 336; State v. Burnham, 9 N. H. 34, 31 Am. Dec. 217; State v. Avery, 7 Conn. 268, 18 Am. Dec. 105) an indictable offense (Com. v. Chapman, supra) it is not a private action, subject to compromise (Reg. v. The World, 13 Cox, C. C. 305) and neither retraction nor apology is a defense, going only in mitigation of damages. Com. v. Morgan, 107 Mass. 199. Whenever an action lies for libel without laying special damages, indictment lies. Stanton v. Andrews, 5 U. C. Q. B. 229; Desty, Am. Crim. L. & 140a. § 558. What Constitutes Criminal Libel.-"A malicious publication, by writing, printing, picture, effigy, sign or otherwise than by mere speech, which exposes any living person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes, or tends to cause any person to be shunned or avoided, or which has a tendency to injure any person, corporation or association of persons, in his or their business or occupation, is a libel. A person who publishes a libel is guilty of a misdemeanor. A publication having the tendency or effect mentioned in section 242, is to be deemed malicious, if no justification or excuse therefor is shown. The publication is justified when the matter charged as libelous is true, and was published with good motives and for justifiable ends. The publication is excused when it is honestly made, in the belief of its truth and upon reasonable grounds for this belief, and consists of fair comments upon the conduct of a person in respect to public affairs, or upon a thing which the proprietor thereof offers or explains to the public." N. Y. Penal Code, §§ 242–244. The rule derived from the authorities, and with which most of the cases can be reconciled, seems to be this: When the words spoken have such a relation that the profession or occupation of the plaintiff tend to injure him in respect to it, or to impair confidence in his character or ability, when, from the nature of the business, great confidence must necessarily be reposed, they are actionable, although not applied by the speaker to the profession or occupation of the plaintiff; but when they convey only a general imputation upon his character, equally injurious to any one of whom they might be spoken, they are not actionable, unless such application can be made. Cawdry v. Highley, Cro. Car. 270; Chaddock v. Briggs, 13 Mass. 248, 7 Am. Dec. 137; Davis v. Ruff, 1 Cheves, L. 17, 34 Am. Dec. 584; Ayre v. Craven, 2 Ad. & El. 2; Doyley v. Roberts, 3 Bing. N. C. 835; Jones v. Littler, 7 Mees. & W. 423; Starkie, Slander & Libel, 118; 1 New Lead. Cas. 124; Sanderson v. Caldwell, 45 N. Y. 405, 6 Am. Rep. 105. 559. The Term "Publication" Defined.-"To sustain a charge of publishing a libel, it is not necessary that the matter complained of should have been seen by another. It is enough that the defendant knowingly displayed it, or parted with its immediate custody, under circumstances which exposed it to be seen or understood by another person than himself." N. Y. Penal Code, § 245. This may be effected in criminal law by merely sending a letter to the prosecutor couched in such terms as tend to incite a breach of the peace. In civil cases a publication may run to some third person and this fact must be shown. In criminal prosecutions, however, this rule is not strictly enforced. Odgers, Libel & Slander, 432; Heard, Libel & Slander, § 264. Where a writer of a letter, containing libelous matter, reads the same aloud to a stranger, it is a publication. When a charge, in a written publication, is equivocal, the construction of it is a question for the jury. When the writing complained of as libelous, is plain and unambiguous, the question, in a civil action, whether it be a libel or not, is a question of law. Snyder v. Andrews, 6 Barb. 43. § 560. Publication, how Proved. The publication of a libel by the defendant may be proved by evidence that he distributed it with his own hand, or maliciously exposed its contents, or read or sung it in the presence of others; or, if it were a picture, or a sign, that he painted it, or if it were done by any other symbol or parade, that he took part in it, for the purpose of exposing the plaintiff to contempt and ridicule. But to show a copy of a caricature to an individual privately, and upon request, is not a publication. Nor is the porter guilty of publishing, who delivers parcels containing libels, if he is ignorant of their contents. So, if one sells a few copies of a periodical, in which, among other things, the libel is contained, it is still a question for the jury, whether he knew what he was selling. If the libel was published in a newspaper, evidence that copies of the paper containing it were gratuitously circulated in the plaintiff's neighborhood, though they be not shown to have been sent by the defendant who was the publisher, is admissible to show the extent of the circulation of the paper, and the consequent injury to the plaintiff. 2 Greenl. Ev. § 415, citing De Libellis Famosis, 5 Coke, 125; Lambe's Case, 9 Coke, 59; Johnson v. Hudson, 7 Ad. & El. 233; Rex v. Pearce, Peake, 75; Smith v. Wood, 3 Campb. 323; Day v. Bream, 2 Mood. & R. 54; Chubb v. Flannagan, 6 Car. & P. 431; Gathercole v. Miall, 15 Mees. & W. 319, 10 Jur. 337; Barrows v. Carpenter, 11 Cush. 456. In an action for libel it is a sufficient allegation of its publication by the defendant, that he was the proprietor of a newspaper in which it was published. The statement that the words published are a libel is a sufficient allegation of falsehood and malice. Where the publication is not privileged, nor capable of an innocent construction, it is the duty of the judge to charge that it is libelous. The rule that in all prosecutions for libel, the jury have the right to determine the law and the fact, relates to criminal proceedings only. Hunt v. Bennett, 19 N. Y. 173. 561. What the Indictment must Show.-It was long since held that an indictment must show on its face that the libel was written or printed. 2 Archb. Crim. Pr. & Pl. (7th ed.) 223, 224. It is the rule that, where an exception is stated in the statute defining the offense, the indictment must show that the case is not within the exception. People v. Brown, 6 Park. Crim. Rep. 666. In Jefferson v. People, 101 N. Y. 19, this rule is restated; but it was held not to be applicable to the indictment in that case. In Harris v. White, 81 N. Y. 532, it was held that, where the exception is contained in the enacting clause, the indictment must negative the exception. There are no exceptions to a rule that an indictment upon a statute must state all the facts and circumstances which constitute the statutory offense, so as to bring the accused perfectly within the provisions of the statute. People v. Allen, 5 Denio, 76; People v. Taylor, 3 Denio, 91; People v. Burns, 53 Hun, 274; People v. Dumar, 106 N. Y. 505; Phelps v. People, 72 N. Y. 349. Even in an action to recover damages for fraud it is the established rule that, where the proof is equally consistent with guilt or innocence, there must be a verdict for the defendant. Morris v. Talcott, 96 N. Y. 100. It is also settled that a party in pleading must clearly state his cause of action or defense; and, when a statement in a pleading is susceptible of two meanings, the one most unfavorable to the pleader must be adopted. Clark v. Dillon, 97 N. Y. 370. In criminal cases it is the universal rule that, where the indictment will admit of a construction in favor of innocence, it should be adopted. This doctrine is illustrated in People v. Standish, 6 Park. Crim. Rep. 111. In that case the defendant was indicted. for illegal voting. It was alleged generally that he, "not then and there being a qualified voter," did vote, etc. The particular disqualification under which he rested was not alleged. It was proven upon the trial that the defendant made a bet, which under the statute disqualified him. The court held that the particular disqualification should have been alleged in the indictment. "Those facts which give character to the act, and which render it criminal, should be alleged in the indictment, otherwise the great object of pleading-that of informing the party what he is called upon to answer-will be defeated." An indictment for a criminal libel cannot be sustained if the prosecutor or libelee, in order to sustain a civil action for the offense, must allege special damages. § 562. Outline of Plaintiff's Proofs.-"The natural order of the proofs in actions for defamation on the part of the plaintiff, where the general issue has been pleaded, is: "(1) Plaintiff's special character and extrinsic matter. "(2) Publication of the defamatory matter. "(3) The colloquium and innuendoes. "(4) Malice. "(5) Damage. Where the words are actionable only by reason of the plaintiff's holding an office or exercising a profession or trade, the plaintiff |