Giles v. The State Of Ga.
| Decision Date | 28 February 1849 |
| Docket Number | No. 40.,40. |
| Citation | 6 Ga. 276 |
| Parties | David Giles, plaintiff in error. vs. The State of Georgia, defendant. |
| Court | Georgia Supreme Court |
Indictment for a libel, Houston Superior Court, October Term, 1848. Tried before Judge Floyd.
David Giles was put on his trial at the October Term of Houston Superior Court, upon an indictment for a libel:
And the jurors aforesaid, upon their oaths aforesaid, do say that the aforesaid malicious defamation, so then and there uttered and published, then and there tended to blacken the reputation of the said William Thompson, who was then and there living, and thereby then and there tended to expose the said William Thompson to public hatred, contempt and ridicule. The aforesaid written malicious defamation being then and there utterly untrue and false—contrary to the laws of said State—the good order, peace and dignity thereof."
John Sanders testified that he had frequently seen the defendant write; that he was Bailiff in his district some four or five years, while the defendant acted as Justice of the Peace, and that he believed the libel to be in his handwriting. Anthony Thompson sworn, said that he was acquainted with the hand-writing of the defendant, from having seen him write often. He had acted with him as associate Justice of the Peace, and he believed the libel to be in his handwriting. He and William Thompson were Commissioners of the roads two or three years ago, and fined Jesse Hunter for not working on the road. He has a son named Americus Maxwell Thompson: a man by the name of Dill Sap lived in the near neighborhood of William Thompson many years ago, in Burke county. Joseph Davis stated on oath, that he found the libelous paper on the ground, in or near the side of theroad; there was turpentine on it, and a blaze on a pine tree just by; he read it and carried it to Thompson.
James Youman, Stephen Ham and—— Smith, testified, each
on the part of the accused, that they had seen the defendant write several times, and from the knowledge thus acquired, they did not believe the libelous publication to be in his hand-writing.
The defendant was found guilty; whereupon, a motion was made in arrest of judgment—
1. Because there is no sufficient charge of publication in said indictment, it not being alleged that it was seen or read by any one.
2. There is no inducement or other averment setting forth the facts necessary to explain the meaning of the supposed libel.
3. The libel is only alleged to have been published of and concerning William Thompson, (the words "and others" not being sufficient to designate any one else,) and it is not libelous as it respects him, without averment and proof of extrinsic facts connecting him with the libel and explaining its meaning, which averments are not contained in the indictment.
4. It is not libelous to charge a man with drunkenness, and there is no averment that "old Bill" meant William Thompson.
5. The inuendo after "M. M. Thompson" and "old Bill's wife, " meaning the son and wife of said William Thompson, are insufficient, there being no averment that he had a son or wife, or that the libel was of and concerning the wife or son.
6. The offence is not set forth with sufficient certainty and precision.
7. The indictment does not set forth any offence, indictable and punishable under the Penal Code of the State.
Which motion was overruled by the Court, and defendant ex-cepted.
Counsel for defendant then moved the Court for a new trial.
1. Because the Court erred in admitting the testimony of A. M. Thompson, in relation to the facts of himself and William Thompson having been Commissioners of roads, and had as such fined Jesse Hunter for not working on the road, there being no averment, of these facts in the indictment; and parol evidence was inadmissible, there being higher evidence, which was not shown to have been lost or destroyed.
2. The Court erred in admitting proof that William Thomp-son had a son by the name of Americus Maxwell Thompson, there being no averment of that fact, or that the libel was of and concerning him.
3. The Court erred in admitting testimony to prove that William Thompson had a wife; that a man by the name of Dill Sap once lived in the same neighborhood with the said William Thompson; that William Thompson was sometimes called "old Bill, " there being no averment in the indictment to support the proof.
4. Because the Court erred in charging the Jury, that if they believed that the libel was in the handwriting of the defendant, was afterwards found by the side of a public road and read, the presumption was that it was published by him or by his authority; that if it was not so published, it was incumbent on the defendant to prove how it came out of his possession.
5. The Court erred in charging the Jury, that though the defendant was entitled to the benefit of any doubts they might have of his guilt, they must be reasonable doubts—not "a may be so" or "a might be so"—such charge being calculated to prejudice the Jury against the testimony of defendant.
6. Because the Jury found contrary to the evidence—the evidence on the part of the State to prove that defendant wrote the libel being overbalanced by the evidence introduced by defendant.
7. For newly discovered evidence.
The 7th ground was supported by the affidavit of Giles, that he had been informed since the trial, by James Youman, that Quepha Youman, now of Sumter county, would swear "that she was living in Houston, in the same neighborhood with prosecutor and defendant, at the time said alleged libel was found; that soon after, she was at the house of prosecutor, who showed her said paper; that about this time she received a scurrilous writing herself, from another individual than deponent, and from the great similarity in the handwriting, and the abusiveness of the two papers, and the fact that the writer was at variance with the proscutor, she would swear that the alleged libel was not written by Giles.
The Court overruled the motion and the defendant excepted.
John M. Giles, for plaintiff in error.
Motion in arrest of judgment.
There is no sufficient charge of publication in the indictment. Starkie on Slander, 263. Watts & Fraser et al. 7 A. & E. 223. 34 E. C. L. E. 83. 3 lb. 116, note. Cooke on Def. 135, (43 Law Lib.) 2 Greenlf. Ev. §414. Clutterbuck vs. Chaffers, 1 Stark. R. 471. 2 E. C. L. R. Lyle vs. Clason, 1 Caine's R. 581. Fonville vs. McNease, Dudley's (S. C.) R. 303. Cooke on Def. 14. 2 Greenlf. Ev. §414.
No latitude of intendment can include more than is alleged in the indictment. Per Nisbet, J., in Locke vs. The State, 3 Kelly, 540. Per Warner, J., in McLanes vs. The State, 4 Ga. R. 341.
There is no inducement or other averment, setting forth the facts necessary to explain the meaning of the supposed libel. Rex vs. Horne, Cowp. R. 683. 3 Chit. Cr. L. 873. Stark. Cr. P. 144. Archbold's Cr. P. 525.
The charge of drunkeunnerr is made against "old Bill"—it is not avered that old Bill meant William Thompson, nor is it alleged that he was ever known or designated by that name. Miller vs. Maxwell, 16 Wend. 14, 15, 16. Tyler vs. Tillotmon, 2 Hill's N. Y. R. 508.
The inuendo after M. M. Thompson, "meaning the son of the said William Thompson, " is insufficient and improper, because the indictment does not allege the libel to be of and concerning a son of William Thompson; nor does the inuendo state what son was meant. The inuendo that old Bill's wife meant William Thompson's wife, is also insufficient and improper, as it is not alleged that the libel was of and concerning his wife, and the inuendo does not set forth her name. 1 Saund. R. 242, n. 3. Rex vs. Home, Cowp. 683. Taylor vs. The State, 4 Ga. R. 20. 3 Chit. Cr. L. 875.
In support of the motion for a new trial, Mr. Giles cited—Prince's Dig. 740. 1 Greenlf. Ev. §44. Best on Presumptions, 44, note. 37 Lit L. Lib. Charge of Littledale, J. to the Jury, in Regina vs. Lovett, 9 C. & P. 462. 38 E. C. L. R. 183. 4 Sup. Ct. R. 22. 1 Kelly. Best on Presumptions, §215. Ib. §170, p. 233.
Samuel Hall, for defendant in error.
1. The publication is sufficiently alleged and proven. Starkie on Slander. Comyn's Dig. Libel. B. 1. 1 Russell on Crimes,
235, et seq. 2. The averment that the libelous matter was of and concerning William Thompson "and others, "taken in connection with the matter set out in the indictment, is sufficiently certain under the Statute of Georgia. Prince, 643, 644, 658, 659. It must be alleged that the libel was written of and concerning some person. 1 Russell, 233, 234. An attempt to excite ridicule, hatred or contempt, against a man\'s family, is a libel upon him. The King vs. Bedingfield et al. 2 Burr. 981. 1 Russell, 211.
3. The three first grounds taken on the motion for a new trial, cannot be sustained, because it does not appear from the bill of exceptions, that the admission of...
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