Commonwealth v. Damon

Decision Date29 February 1884
Citation136 Mass. 441
PartiesCommonwealth v. Robin Damon
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

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Essex. Indictment, alleging that the defendant, on May 18, 1883, at Salem, "contriving and unlawfully and maliciously intending to injure, vilify, and prejudice one John W. Hart, and to deprive him of his good name, fame, credit, and reputation, and to bring him, the said Hart, into great contempt, scandal, infamy, and disgrace," "unlawfully did compose, write, print, and publish, and cause and procure to be composed, written, printed, and published in a certain newspaper then and there published by said Damon and called the Salem Evening News, a false, scandalous, and defamatory libel, in the form of a letter purporting to have been written to the editor of said newspaper by one Nicholas J. Dean, and then and there printed and published in said newspaper by the said Damon as aforesaid, the said false, scandalous, malicious, and defamatory libel then and there containing divers false, scandalous, malicious, and defamatory matters and things of and concerning said John W. Hart, and of and concerning the acts of said John W. Hart in his official capacity as city marshal of said city of Salem, the said Hart being then and there and having theretofore and for a long time been the city marshal of said city of Salem, which said false, scandalous, malicious, and defamatory libel is according to the tenor following, that is to say:

" 'A Malicious City Marshal (meaning thereby the said John W. Hart).

"Editor of News:-- With your permission, I desire to make public the actions of a certain city official (meaning thereby the said John W. Hart), which is beneath the dignity the position requires, and unbecoming any man. The writer of this article hired recently a stand at the corner of Essex and Central Streets, for the sale of flowers, for a season of about two months. After locating I was instructed by Marshal Hart (meaning thereby the said John W. Hart), and threatened with prosecution. It is well known that this corner has been occupied for years by parties, and some not citizens, who have obstructed the sidewalk more or less, yet they have carried on their business unmolested. There are a dozen or more parties not far from the police station, who obstruct a great portion of sidewalks every day, and they are allowed so to do. Yet the narrow shelf located on this corner, that I hired to pursue a legitimate business and which would contain nothing but flowers, at once an ornament, and no obstruction whatever, was obnoxious to this official (meaning thereby the said John W. Hart). Why this partiality? Does it require the presentation of a turkey, potatoes, flowers, a gold watch, or other perquisites, quietly delivered, to close the eye of this vigilant official (meaning thereby that the said John W. Hart had been bribed by offenders against the law to neglect his official duty as city marshal as aforesaid) in every particular case? If so, I am not so disposed in such cases. But let us look at some of his past transactions toward me, and the public will easily perceive the underlying motive in this instance. From the beginning of my term upon the police force, to its close of two years, the marshal was opposed to me; in fact, he stated to parties, names given if desired, that I was placed there against his wish, and used his power and position until he obtained my removal. He otherwise injured me in a manner well known to himself, and in direct opposition to his duty; and now, knowing my opinion of him as a man, he wishes, by a farther exercise of his malice, to deprive me of a means to gain an honest living. This is done under pretext of complying with city ordinance and duty; but it is strained, and malice is prominent from the start. An officer who will stoop to such a proceeding is not fit to fill such a position, and needs close attention. I ask or require no more privileges or favors than others, but I fail to see wherein others can obtain favors and rights denied to me. But this man fails to recognize the right of all to live and let live, which is a virtue unknown to him.

"'Nicholas J. Dean.'"

the said Robin Damon then and there well knowing the said defamatory libel to be false; to the great damage, scandal, and disgrace of the said John W. Hart, and against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided."

In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment, for the following reasons: "1. Said indictment does not set forth any offence which is indictable or punishable under the laws of this Commonwealth. 2. It is nowhere alleged, by appropriate averments, in what way the words set forth could or did affect the party to be defamed injuriously, nor are any facts set forth to which the language alleged to be libellous could so refer as to constitute such language libellous. 3. It is nowhere averred what portions of the published words are claimed to be either false or libellous, nor in what manner they could or did affect the party alleged to be libelled. 4. The allegations contained in said indictment are insufficient, and no crime is clearly and fully set forth in accordance with the requirements of law."

Mason, J., overruled the motion; and the defendant excepted.

At the trial, it appeared in evidence that the defendant was the publisher of the newspaper referred to; and that the article, which is correctly set forth in the indictment, was published in the edition of May 18, 1883.

The defendant offered evidence to prove the truth of the allegations of the alleged libel; but denied that the interrogations therein were allegations.

The government offered in evidence articles published in said newspaper under the dates of May 23, May 29, July 14, July 27, August 1, September 12, and September 17, 1883, for the purpose of showing malice. The defendant objected to their admission; but the judge admitted them for the purpose for which they were offered. A copy of these articles was annexed to the bill of exceptions. The nature of them sufficiently appears in the opinion. No issue was made as to the truth or falsity of these articles.

The defendant offered himself as a witness; and, on cross-examination, was questioned as to a conversation he had with Hart at a time prior to said May 18, and in this connection was asked the following question: "Did your paper from that time on have articles in it that were unfriendly to Mr. Hart?" The answer was, "When the editor thought proper to criticise, he did so, and there were such criticisms." The defendant objected to this question and answer; but they were admitted.

The following questions were also asked in the same connection: "Did your paper pursue an unfriendly tone towards Mr. Hart?" to which the defendant answered, "The tone of the paper was not friendly." "Has the paper since ever contained anything friendly to Mr. Hart, or in commendation of him?" to which the defendant answered, "No." To each of these questions objection was made, but they were allowed to be asked.

The evidence tended to show that the article in question was written by the person whose signature it bore; that it was taken by him to the editor of the defendant's paper, and was accepted; and that the defendant did not know of the writing or publishing of this particular article, being out of town on the day when this took place. This evidence was uncontradicted, but there was other evidence in regard to the general management of the paper.

The defendant asked the judge to instruct the jury as follows: "1. The defendant cannot be held criminally liable for what appeared in his paper, unless he knew the contents of the article, or had means of knowing the same which he purposely neglected to use. 2. Malice is of the essence of the offence, and must be found as a fact; and if the defendant had no knowledge at all of the transaction, no malice can be found by the jury. 3. It is wholly immaterial that the defendant in fact entertained feelings of malice toward Hart, unless he is found in some way to have been instrumental in the publishing of the particular article set out in the indictment."

The judge declined to give either of the instructions asked, but instructed the jury, among other things not objected to, as follows: "It must be shown that the libellous article was published by the defendant maliciously. Malice is not used in this connection in the popular sense of hatred and ill-will, but the publication is deemed malicious if done...

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