State v. Aler.

• Decision Date: 01 December 1894
• Parties: State v. Aler.
• Court: West Virginia Supreme Court

39 W.Va. 549

State

v.Aler.

Supreme Court of Appeals of West Virginia.

Submitted September 13, 1894

Decided December 1, 1894.

1. Criminal Proceedings Record Similiter.

In a criminal case the record must show the defendant's plea of not guilty, without which there can be no valid conviction; but the omission of the similiter or joinder by the prosecuting officer is, at most, a mere formal defect, at any time amenable, and it does not render the record bad.

2. Criminal Proceedings Pleading Sl a nder Libel Innu-

endo.

It is an elementary rule of pleading that whatever is alleged must be alleged with certainty, and one of the means of insuring certainty in a complaint or indictment for slander or libel is innuendo.

3. Criminal Proceedings Pleading Slander Libel Innuendo.

An innuendo may serve for an explanation to point a meaning where there is precedent matter expressed or necessarily understood or known, but never to establish a new charge.

D. B. Lucas for appellant cited 30 W. Ya. 305; 20 W. Va. 777; 35 W. Va. 280, p't 5, Syll.; 3 Ired. 177; 91 U. S. 225; 114 Pa. St. 554; 16 W. Va. 555; 12 W. Va. 505; Code, c. 125, s. 25; 3 Chitt. PI. 1144*; 33 W. Va. 319; Steph. PI. 57, 237; 3 P>1 Comm. 307; Whar. Cr. L. § 530; Town. Lib. § 337; 13 W. Va. 71; 16 Wend. 10; 2 Saund. PI. and Ev. 799; 3 Johns. 220*; 2 Den. 297; 16 Wend. 16-19.

Attorney-General T. S. Riley for the state cited 2 Va. 527; 13 W. Va. 852; 23 W. Va. 773; 20 W. Ya. 770; 16 W. Va. 555; 12 W. Va 505; Code, c. 125, s. 25.

U. S. G. Pitzer for the state cited 2 Arch. Cr. Pr. 317; 1 Bish. Cr. Pr. 615; 3 Gr. Ev. § 176; Id. 177; 13 W. Va. 9G, 82, 205, 209; 16 Gratt. 80; 5 Tonn. 211; 23 Am. Rep. 798; Const. Art. IV, s. 8; 4 Rob. Pr. 733; 17 Gratt. 255; 2 Sand. P. & E. 900, 902; 10 Leigh, 261; 2 Bish. Cr. L. § 930; 2 Whar. Pr. Ind. 939; 3 Gr. Ev. § 174, 175; Id. 166; 2 Bish. Cr. Proc. 783, 785, 791, 798, 794.

English, Judge:

On the 11th day of January, 1893, the grand jury of Berkeley county returned ati indictment against F. Vernon Aler for libel, which is in the words and figures following, to wit:

"State of West Virginia, Berkeley County. 'Tu the Circuit Court of said County, January Term, 1893."

The grand jury of the state of West Virginia, in and for the body of the county of Berkeley, and now attending the said court, upon their oaths present: That, before the commission of the offence hereinafter mentioned, one John Taliaferro, on the 11th day of August, A. D. one thousand eight hundred and seventy four, was lawfully incarcerated and held in the county jail of Berkeley county, upon the criminal charge of having murdered one Annie Butler; and that in the night time of said 14th day of August, A. D. one thousand eight hundred and seventy four, a mob of unknown persons, then and there, without due process of law, did take said John Taliaferro from said jail in said county, and unlawfully and feloniously hang him, until he, the said John Taliaferro, was dead; and that said unknown persons, constituting said mob, were then and are still unknown, and were not and have not been arrested and punished for the aforesaid felonious hanging; and that various persons, unlawfully and maliciously contriving and intending to vilify and defame one George E. Evans, have falsely intimated and charged him with abetting and aiding in the aforesaid lynching of the said John Taliaferro; and that on the 24th day of October, A. I), one thousand eight hundred and ninety two, E. Vernon Aler, of the said county of Berkeley, was the proprietor and publisher of a newspaper in Martinsburg, county aforesaid, called and known as The World.' That said F. Vernon Aler, in an article and writing published by him in said newspaper, unlawfully and maliciously contriving to injure and vilify one George F. Evans, and to bring said George F. Evans into public scandal, contempt, ridicule, and disgrace, then and there, to wit, on the said 24th day of October, A. D. 1892, at Martinsburg, in Berkeley county, aforesaid, did publish in said newspaper aforesaid, called ' The World, ' and circulated in said county, a false, scandalous, malicious, and defamatory libel of and concerning the said George F. Evans, containing divers false, scandalous, malicious, and defamatory matters and things of and concerning the said George F. Evans, of the tenor following, to wit:

" 'Saturday morning, Justice Wm. McKee's office wTas the scene of an unusual occurrence in the history of Berkeley county. The back or adjoining room to the main office was selected by Mr. George W. Feidt, prosecuting attorney of Berkeley county, and Mr. George F. Evans, an ex-officer of Judge Lynch's court (meaning that said George F. Evans had aided and abetted in the unlawful hanging of aforesaid John Taliaferro) for the purpose of devising some plan or scheme to counteract the effect of Edward Murphy's sworn statement with the general public, which was published in last Thursday's World. It was then agreed that Evans should swear out a warrant for Murphy's arrest at once, charging him with perjury, before Squire McKee, at the hearing some time prior to the term of the Circuit Court. Murphy was immediately arrested, and arraigned before Squire MeKee. The editor of the World was sent for, who immediately went to Murphy's assistance. Upon inquiry, the latter did not know what he had been arrested for. The complainant demanded a trial at once, which would have been altogether bad for Murphy, as he had received no notice whatever, and had no time for preparation. The defence then waived a hearing temporarily, and, after the squire placing the amount of the bond at the highest possible figure allowed by law, Murphy was remanded to jail.'

"And in.certain other part of which said newspaper article, writing, and publication there were and are contained certain false, wicked, malicious, scandalous, defamatory, and libelous matter of and concerning said George F. Evans, to the tenor and effect following, to wit:

" 'Why did he (meaning the said George F. Evans) resort to this action, and what can be his object? The only answer any reasonable person can make is that he (meaning said George F. Evans) fears trouble, and wants to get Murphy out of the way. But we will say here:" Mr. Evans, you escaped an indictment at the last grand jury, but you are not yet through. The next one, which will convene on the second Tuesday in January, 1893, will find before it five witnesses, placed there by the World, who will make oath that you instructed and commanded Cornelius Veney to do the shooting. Now is your time to do your fighting, as your chances will be slim, and, furthermore, additional counsel will assist in a legitimate and just prosecution of your case. You (meaning said George F. Evans) might carry out Judge Lynch's laws (meaning that said George F. Evans had violated the law by hanging said John Taliaferro) and be protected by him in the hanging of negroes (meaning that said George F. Evans had been guilty of but escaped punishment for, the hanging of said John Taliaferro, and that said George F. Evans had been and is guilty of feloniously and unlawfully hanging said John Taliaferro and other negroes) but this time the net will be woven somewhat close, and will unravel in a court of justice, before the eyes of an injured public"' to the great scandal, injury, and disgrace of the said George P. Evans, against the peace and dignity of the state. Upon the information of George E. Evans, sworn in open court, and sent to the grand jury to give evidence on this indictment. U. S. G. Pitzer, Prosecuting Attorney."

On the 31st day of January, 1893, the defendant, F. Vernon Aler, appeared and demurred to the indictment; also pleaded not guilty to the charge in the indictment; and entered plea in justification; and (Lie case was continued. On the 13th day of May, 1893, the demurrer to the indictment was considered by the court and overruled. The case was continued by successive orders until the 10th day of October, 1893, when the defendant asked leave to withdraw his pleas theretofore entered in the case, which leave was granted; and thereupon the defendant moved the court to quash said indictment, which motion was overruled, whereupon the defendant moved the court that the prosecution be required to give security for costs, which motion was overruled, and the defendant pleaded not guilty as charged in the indictment; and thereupon the case was submitted to a jury, who found the defendant guilty as charged in the indictment; whereupon the defendant, by his attorney, in arrest of judgment, moved the court to set aside the verdict, and grant him a new trial, which motion was overruled, and the defendant, by his attorney, excepted: and thereupon the court gave judgment upon said verdict, and sentenced the defendant to pay a fine of thirty dollars and gave judgment for that amount against him and costs, and the defendant applied for and obtained this writ of error.

The first error assigned and relied upon is that there is no record of any such indictment being found by the grand jury. This assignment, however, was made before there was a suggestion of a diminution of the record; and, when the record was completed by certiorari, it was found that the order had been casually omitted which showed the finding of the indictment; and, as matter of course, the assignment was not well taken.

The second error assigned is that there is no replication to the defendant's plea, and hence petitioner was tried without any issue being made up. Upon this question, Gould, in his admirable work on Pleading, on page 290 § 20, says: "Whenever one of the parties concludes to the country, and thus refers the trial to the jury, the issue is joined and made ready for trial by the opposite party's adding: 'And the said A. B. or C. D. does the like." This addition, which, from its concluding word, is called the "similiter" merely expresses the concurrence of the party to whom the issue is...