State v. Berry
| Decision Date | 19 December 1914 |
| Citation | 112 Me. 501,92 A. 619 |
| Parties | STATE v. BERRY. |
| Court | Maine Supreme Court |
Exceptions from Superior Court, Cumberland County, at Law.
Wilbur F. Berry was convicted of criminal libel, and he excepts to rulings on evidence and to the denial of a motion in arrest. Exceptions sustained, and indictment quashed.
Argued before SAVAGE, C. J., and CORNISH, BIRD, HANSON, and PHILBROOK, JJ.
Samuel L. Bates, Co. Atty., of Portland, for the State.
H. & W. J. Knowlton, of Portland, and William B. Skelton, of Lewiston, for respondent.
The defendant was indicted for criminal libel, and was tried and convicted. The case comes before the law court on the defendant's exceptions to the exclusion of testimony, and to the overruling of a motion in arrest of judgment. We think the latter exceptions must be sustained, and the indictment quashed. That being so, we have no occasion to consider the other questions. It would be improper to do so.
The definition and prosecution of a criminal libel are in this state matters of statute. The statute defines the crime, declares the responsibility, and regulates the proceeding. Section 1 of chapter 130 of the Revised Statutes, after defining a libel, provides that "nothing shall be deemed a libel unless there is a publication thereof." In section 2 it is declared that "whoever makes composes, dictates, writes or prints a libel directs or procures it to be done, willfully publishes or circulates it, or knowingly and willfully aids in doing either shall be punished," etc. No other statutory provisions are material to the present discussion.
It is clear that the language of section 2 constitutes three separate and independent classes of offenses. To make, compose, dictate, write, or print a libel is one offense. To direct or procure the making, composing, dictating, writing, or printing a libel is another. Both of these are subject to the limitation, in section 1, that nothing is to be deemed a libel unless published. To willfully publish or circulate a libel, or to knowingly aid in doing either, is a third offense.
One may be indicted and convicted of making or printing a libel in the county where it was made or printed, though the publication may have been elsewhere. And one may be indicted and convicted of willfully publishing or circulating a libel in the county where it was published or circulated, though it may have been made or printed elsewhere.
The indictment in this case charges that the defendant "did" at Waterville, in the county of Kennebec, "unlawfully, maliciously, and wickedly compose, write, and print, * * *and did * * * at Portland, in the county of Cumberland, publish and circulate, and cause to be published and circulated, * * * a certain false, scandalous, malicious, and defamatory libel," etc. Two contentions are made under the motion for arrest of judgment: First, that the indictment is bad for duplicity, because it sets forth one offense for composing, writing, and printing a libel in Kennebec county, and another offense for publishing and circulating it in Cumberland county; and, secondly, that it does not charge in the language of the statute that the defendant willfully published and circulated, etc. The statute word "willfully" is omitted.
It may be that the language in the indictment may be looked at in different ways. It sufficiently avers a composing, writing, and printing in Kennebec county. It also avers a publication. It would have been sufficient simply to aver that the libel was published. We do not see that the averment of the particularities of the publication is harmful. So that, if this indictment had been returned in Kennebec county, instead of in Cumberland, it might have been proof against attack. The defendant says that the indictment sets forth one offense in Kennebec county, and attempts to set forth another in Cumberland county. On the other hand, the state argues that the averment touching, composing, etc., in Kennebec county, may be regarded as surplusage, and that the only offense charged is that of publishing and circulating in Cumberland county. We are inclined to this view. Under any other view the indictment seems bad in this respect.
But if this be the proper view, and it is the only view that can avail the state on the question of duplicity, we are brought face to face with the other contention, namely, that it is not alleged that the publishing and circulating were willfully done. The statute declares that...
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