Hartford v. State

• Decision Date: 26 June 1884
• Docket Number: 11,516
• Citation: 96 Ind. 461
• Parties: Hartford v. The State
• Court: Indiana Supreme Court

96 Ind. 461

Hartford v. The State

No. 11,516

Supreme Court of Indiana

June 26, 1884

From the Switzerland Circuit Court.

Judgment reversed, with instructions to the court below to sustain the appellant's motion for a new trial.

A. C Downey, W. R. Johnson and F. M. Griffith, for appellant.

F. T Hord, Attorney General, and E. G. Hay, Prosecuting Attorney for the State.

OPINION

Hammond, J.

Indictment in two counts for libel. The appellant's motion to quash was sustained as to the first, and overruled as to the second count. Plea, not guilty; trial by jury; verdict of guilty, and fine of ten dollars; motion for a new trial overruled, and judgment on the verdict.

The indictment is predicated upon section 24 of "An act concerning public offences and their punishment," approved April 14th, 1881, reading as follows: "Whoever makes, composes, dictates, prints or writes a libel to be published, or procures the same to be done, and whoever publishes, or knowingly aids in publishing or communicating a libel, is guilty of libel, and shall, upon conviction thereof, be fined not more than one thousand dollars nor less than five dollars, to which may be added imprisonment in the county jail, for not more than one year nor less than ten days." Acts 1881, p. 177, section 1925, R. S. 1881.

It will be observed that the above statute does not define a libel. Section 237, R. S. 1881, which has been upon our statute books as in force since May 6th, 1853, declares that "Crimes and misdemeanors shall be defined, and punishment therefor fixed by statutes of this State, and not otherwise." But, for the past twenty years, the decisions of this court have been uniform that the above statute could not bind subsequent legislation, and that it is competent for the Legislature to prescribe penalties for the commission of an offence without defining it. Wall v. State, 23 Ind. 150; State v. Craig, 23 Ind. 185; State v. Oskins, 28 Ind. 364; Burk v. State, 27 Ind. 430; Hood v. State, 56 Ind. 263; Sanders v. State, 85 Ind. 318 (44 Am. R. 29).

Section 1 of an act approved March 15th, 1879, Acts 1879, p. 154, defined libel as follows: "That any false and defamatory printing, writing, sign, picture, representation or effigy, tending to expose any person to public hatred or ridicule, deprive him of the benefits of public confidence, or social intercourse, or designed to blacken and vilify the memory of a deceased person, and tending to scandalize and disgrace his relations and friends, shall be deemed a libel." This section was probably repealed by the criminal code of 1881, but as its definition of libel embraces all the substantial elements of the offence as recognized by the common law, it may, for convenience, be recurred to as affording a simple and satisfactory description of the constituent parts of the crime. 4 Blackst. Com. 150; 2 Bishop Crim. Law, sections 907-8; 2 Whart. Crim. Law, section 2535.

The prosecuting witness in this case was the county superintendent of schools in Switzerland county. At a meeting of the county board of education, presided over by the prosecuting witness, a change of certain text-books was made to the advantage, or supposed advantage, of a publishing house in Cincinnati. The appellant published in a newspaper in said county, over his own signature, an article entitled "A true statement of the facts," the substance of which was that an agent of the publishing house referred to had employed the appellant and the prosecuting witness to procure the change of the text-books by their influence before the board of education; that they used their influence, with success in this matter, and that for so doing they received from the agent of the publishing house $ 125, which was paid by the agent to the appellant, and by him divided with the prosecuting witness. A copy of the publication was set out in each count of the indictment. The second count alleges that the appellant charged in such publication that the prosecuting witness was bribed by the agent of the publishing house and by the appellant in the matter of the change of text-books. It is claimed that there is a variance between the publication and the averments in the indictment as to the charges made in the publication, but in this we think the appellant's counsel are in error. The charges made against the appellant in the indictment are, in all substantial respects, sustained by the publication in question. The surname alone of the prosecuting witness appears in the article complained of, but the indictment charges that it was published of and concerning such witness. This was sufficient to show that the charges made in the publication related to the county superintendent, whose full name is set out in the indictment as being the person injuriously affected by the alleged libel.

The publication in question was clearly libellous. Whether it charged the prosecuting witness with a crime need not be decided. It imputed to him official corruption, and this, if believed, would certainly degrade him in the estimation of the public. A publication may be libellous without charging the commission of crime. State v. DeLong, 88 Ind. 312; Johnson v. Stebbins, 5 Ind. 364. There was no error in overruling the motion to quash the second count of the indictment.

The prosecuting witness, who testified in the case, had, as he admitted, published articles in a newspaper in reference to what occurred in regard to the exchange of text-books. There were three of these articles. One was published the week before, one on the same day of, and the other a week after, the publication made by the appellant. These articles were offered in evidence by the appellant, but, upon objection by the State, they were not admitted. It is claimed that there was a discrepancy between some of the statements made in these publications and the evidence of the prosecuting witness at the trial. Whether there was or not such contradiction we express no opinion, but as the articles related to the same facts testified to by the prosecuting witness, the appellant, we think, had the right to put these articles in evidence, leaving the jury to determine whether there were any contradictions that in any way affected the credibility of the witness. The first article reflected severely upon the appellant, charging him with falsehood in circulating reports injurious to the county superintendent regarding his conduct in procuring the exchange of text-books. There was evidence tending to show that the appellant's publication, which he claimed was "a true statement of the facts in the case," was provoked by the publication of the first article by the prosecuting witness. Even though this publication by the prosecuting witness was libellous, it furnished no excuse or justification for that made by the appellant. The commission of one crime can be no defence for the commission of another. At the same time, however, the law is well settled that in civil actions for libel the defendant may, in mitigation of damages, show that the publication complained of was provoked by one, relating to the same subject, made by the plaintiff a short time prior to the defendant's publication. Townshend Slander and Libel, sections 414, 415 and 416; Odgers Libel and Slander, p. 306; 4 Wait Actions and Defenses, p. 313. We think that the same rule should apply in criminal cases, and that the first article published by the prosecuting witness should have been admitted in evidence as proper to be considered by the jury in mitigation of punishment. Circumstances of a mitigating character, and which are proper to be considered by the jury in fixing the penalty, may be introduced in evidence by the defendant in a criminal case. Kistler v. State, 54 Ind. 400; 1 Bishop Crim. Law, sections 948, 949. As the jury in the present case did not assess the lowest penalty prescribed by statute for the offence of libel, we can not say that the exclusion of the evidence offered by the appellant was harmless.

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