Tracy v. Commonwealth

• Decision Date: 06 December 1888
• Citation: 87 Ky. 578,9 S.W. 822
• Parties: TRACY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

9 S.W. 822

87 Ky. 578

TRACY v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 6, 1888

Appeal from circuit court, Fayette county; T. N. ALLEN, Special Judge.

Wm Lindsay, Mulligan & Beauchamp, and D. J. Falconer, for appellant.

P. W Hardin, for appellee.

PRYOR J.

This is an appeal from the judgment below imposing a fine on the appellant for an alleged criminal libel, under an indictment of the Fayette circuit court, in which the defendant is charged with having willfully and maliciously composed, and caused to be printed and published of and concerning W. D Nicholas, late sheriff of Fayette county, and the jury before whom the value of certain landed property was tried on a writ of ad quod damnum obtained by the Lexington & Big Sandy Railroad Company against the appellant and others, and of and concerning J. R. Morton, the presiding judge of the Fayette circuit court, before whom the case was subsequently tried, a certain false, scandalous, and malicious libel, one part of which is as follows: (the pleader proceeding to charge the libelous matter in reference to the sheriff as made him, if true, a corrupt official,) and then proceeds "another part whereof is of the tenor following: I am indignant and forced to say to the public that the ruling of Judge Morton (meaning the judge of the Fayette circuit court) is unjust and a disgrace to his position. He denied me the right of a trial by jury because he did not want it out of his hands, as he could not decide in favor of the railroad company, as he has done." This libelous matter appearing in the newspapers published in the city of Lexington, the indictment followed, resulting in a fine of $500. The accused filed a general and special demurrer to the indictment; the ground of the special demurrer being that the commonwealth in one count of the indictment (and it contains but one) had charged him with committing two or more public offenses. The demurrers were overruled, and the defendant pleaded not guilty.

It is evident that the defendant, in publishing the libelous matter in which he maligned the judge and misrepresented his official conduct, went beyond the bounds of legitimate criticism, and we shall therefore notice only the grounds urged by counsel for a reversal. It is insisted that, as there are so many ways of printing and publishing written productions, the statements of an indictment should contain the manner in which the printing and publication were made and in support of this rule of pleading the attention of the court is called to the crime of forgery, where this court held in the case of Com. v. Williams, 13 Bush, 267, that as there were so many ways in which that offense can be committed, the indictment must inform the defendant of the particular acts relied on to constitute the offense, and also the acts showing how the paper was uttered; and for like reason it is urged the manner of printing and publishing the libelous matter complained of should also be stated, as there are so many ways of printing and publication. It is difficult, often, to determine what acts constitute forgery, or whether the act said to have been done by the accused amounts to the uttering of forged paper, and for that reason, under our system of code pleading, the statements of the indictment are required to be more specific in this class of cases than at common law, section 124 of the Criminal Code providing that the statements of the indictment must be direct and certain "as to the particular circumstances of the offense charged, if they be necessary to constitute a complete offense." Subsection 2 of section 122 also requires a statement of "the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of ordinary understanding to know what is intended." The crime of forgery may be committed by signing the name of another without authority, or by causing another to sign the name, or by altering a writing already signed; and, while the trial judge will know the legal meaning to be given the word "forgery," and the acts necessary to constitute the offense, a charge in an indictment that the accused committed forgery by uttering a certain instrument of writing, etc., is but the conclusion of the pleader, and fails to inform the accused of the facts necessary to make the offense complete. So one may be guilty of libel, which is simply a malicious defamation of another; but as this may be done in various ways, such as by printing, writing, sign, or picture, it becomes necessary to state in the indictment the facts necessary to constitute the offense in such a way as one of ordinary understanding may know what charge he has to meet. It is averred...