State v. Robbins

• Decision Date: 10 January 1877
• Citation: 66 Me. 324
• Parties: STATE v. LEVI M. ROBBINS and OLIVER OTIS. 1876.
• Court: Maine Supreme Court

66 Me. 324

STATE v. LEVI M. ROBBINS and OLIVER OTIS.

1876.

Supreme Judicial Court of Maine.

January 10, 1877

ON EXCEPTIONS.

INDICTMENT for libel.

The defendants demurred; the demurrer was overruled by the court and the defendants alleged exceptions.

By consent of the county attorney, the defendants, in the event that the demurrer is overruled by the full court, shall have the right to plead anew.

The alleged errors in the indictment are stated in the arguments and in the opinion.

A S. Rice & O. G. Hall, for the defendants.

I. No count in the indictment sufficiently describes a libel.

The statute sets out specially what acts constitute the offense and covers the whole ground of the common law, which is therefore, by necessary implication repealed, and the offense becomes purely statutory. R. S., c. 129, § 1. Com. v. Clap, 4 Mass. 163, 167. Bartlet v. King, 12 Mass. 537, 545. Towle v. Marrett, 3 Me. 22, 26. Bishop Stat. Crimes, § 389, et seq. Com. v. Cooley, 10 Pick. 37, 39.

An indictment upon a statute must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it; and the description must be in the substantial words of the statute, or their equivalents in meaning. State v. McKenzie, 42 Me. 392, 393. Bishop on Crim. Pro., § 360. Wharton's Crim. Law, § 364.

The statute defines a libel to be " the malicious defamation of a living person, made public by any printing, writing, sign, picture, representation, effigy, tending," etc.

The indictment alleges that the defendants " did compose and publish, and cause and procure to be composed and published in a certain public newspaper called the Rockland Opinion," which phrase is not the equivalent in meaning of any of the words set forth in the statute. State v. Taylor, 45 Me. 322.

The statute further provides, in section two, for the " willful" publication of a " malicious" libel. Both words, therefore, are descriptive of the offense. But the indictment in each count, charges the offense to have been committed " " " unlawfully and maliciously," which are not equivalent in meaning. State v. Hussey, 60 Me. 410.

The indictment is evidently drawn under the well known common law precedents, the county attorney not reflecting that they might be inapplicable to a statutory offense.

II. If the offense is sufficiently described, the indictment is bad for duplicity.

It charges in each count, that the defendants " did compose and publish, and cause and procure to be composed and published" the various libels recited.

At the common law it is not perfectly clear that the writer of libelous matter could be indicted, if he was not concerned in the publication. The familiar form of indictments of which this is a copy, was not open to the objection of duplicity, because but one offense was charged, which was proved by the publication alone, which was of the essence of the offense. 3 Greenl. on Ev., § 169.

But under the second section of our libel act, there are two offenses created: 1. The making, composing, dictating, writing or printing a libel, or directing or procuring it to be done. 2. The willfully publishing or circulating it, or knowingly and willfully aiding in doing either.

It is impossible to give any force or meaning to the first clause of the section without applying it expressly to one who has composed a libel, but has not been concerned in the publication; while the second clause applies to the publisher, who may or may not have been the composer.

The statute thus in express terms, creates two distinct and substantive offenses, where it is very doubtful if more than one existed before.

Under this statute the formal allegation in the common law precedent " " composed, written and printed," which it was absolutely unnecessary to prove, becomes descriptive of an offense entirely distinct from the misdemeanor described in the second clause, and applicable only to a different class of offenders; thus the old precedent, supposed to set forth a single crime, now describes two.

The offenses created by this statute are of the same grade as well as nature. One cannot be included or merged in the other. They were intended for different people, and while one person may be convicted, on a proper indictment for both, he may also be convicted of either, although he may not have committed the other.

Take the case at bar as an illustration. There are two defendants, one the editor, the other the publisher of the paper. Is it not clearly competent for the jury, under this statute, to convict Mr. Otis, the editor, of the composition of the libels, and acquit him of the publication, if it should appear that he was not concerned in that; and also convict Mr. Robbins, the publisher, of the publication, and acquit him of the composition, if the testimony should so warrant?

The result would be conviction for two independent offenses joined in the same count. Such joinder is bad for duplicity. State v. Smith, 61 Me. 386, 389.

L. A. Emery, attorney general for the state, after arguing the points raised by the exceptions, closed thus:

" Formerly the rule was, that on overruling a demurrer to an indictment for felony, the judgment should be to answer over while to an indictment for a misdemeanor, the judgment was final, more recently the latter rule has been adopted in all cases.

In this case the county attorney has agreed that if the ‘ demurrer is overruled by the full court,’ the defendants shall have the right to plead over; apparently this was done without the consent of the court; it is doubted whether the county attorney...