State ex rel. Taubman v. Huston

• Decision Date: 02 August 1905
• Parties: STATE ex rel. TAUBMAN v. HUSTON, Sheriff.
• Court: South Dakota Supreme Court

19 S.D. 644

104 N.W. 451

STATE ex rel. TAUBMAN

v.HUSTON, Sheriff.

Supreme Court of South Dakota.

Aug. 2, 1905.

Appeal from Circuit Court, Minnehaha County.

Habeas corpus, on relation of Thomas W. Taubman, against R. J. Huston, sheriff. From an order denying the writ, relator appeals. Affirmed.E. P. Wanzer, for appellant. W. D. Scott and Aikens & Judge, for respondent.

FULLER, J.

All the facts set forth in the sheriff's return to a writ of habeas corpus being admitted by a demurrer thereto, the only question presented by this appeal from an order of the circuit court denying the petitioner's application for a discharge from custody is whether the editor and proprietor of a newspaper, who prints a libel therein, with the willful and malicious intent to injure another by the publication of such defamatory article, is subject to a criminal prosecution in a county of this state other than that in which his printing office is located, but into which he has circulated copies of such paper by mailing the same to subscribers residing therein. At common law, where a bullet discharged from a rifle aimed by an assassin in one county takes murderous effect in another county, jurisdiction is concurrent; and our statute expressly provides that where a public offense is committed partly in one county and partly in another, or within 500 yards of the boundary line of two or more counties, the jurisdiction of the offense is in either of such counties. Reasoning by analogy therefrom, it seems conclusive that an editor of this state, who writes and mails a libelous newspaper article in one county to be published in another, consummates the offense in the latter county, and may be indicted therein and placed upon his trial. Rev. Code Cr. Proc. §§ 72, 73. Such is the rule at common law, so far as traceable, and in Commonwealth v. Blanding, 3 Pick. 304, 15 Am. Dec. 214, it was held that the transmission of a newspaper published in another state to one of the counties of Massachusetts for circulation rendered the publisher of a libel contained therein amenable to prosecution in such county. So in Belo v. Wren, 63 Tex. 721, the court say: “The fact that the crime of libel may have been completed by a publication of the paper in Galveston county does not make it any less of a crime to circulate the number containing the alleged libelous article in other places. By the common law the sale of each copy is a distinct offense, and the prosecutor may at least...