Robinson v. State

Pearce, J., delivered the opinion of the Court. The appellant was indicted in the Circuit Court of AlleT gany County for publishing a criminal libel upon Duncan R. Sloan, and being convicted and sentenced to pay a fine of one hundred dollars and costs, and to confinement in the county jail for a period of fifteen days, he has appealed from that judgment. The alleged libel is contained in an article or letter purporting to be written by a Retired Miner, and published in the Lonaconing Star, a newspaper owned, edited, and published in Allegany County, by the appellant. In this article or letter, Mr. Sloan is characterised as “a blundering, stuttering ninny” — as having an “empty, rickety head” — as ‘‘not having sense enough to admit his universally recognized assininity” — as “playing the part of a snake in the grass” — and it declares that “his avocation politically has been constantly that of a slimy, wriggling, biting, treacherous snake in the grass,” with numerous other epithets of like character.

The indictment contains but one count, and that sets out the article in full which will be reproduced in full in the report of the case. The traverser demurred to the indictment and the Court overruled the demurrer. The traverser then, without withdrawing his demurrer,pleaded over, with leave of the Court, and plead not guilty. ⁶⁴⁹ The sole ground of demurrer is that instead of pointing out and specifying some particular alleged false and defamatory matters, the entire article is set out as “a false, scandalous, malicious and defamatory libel,” and the indictment then charges that the traverser well knew the same to be false. The traverser contends that if a whole letter or article may be charged as libellous, “he must defend against it in its entirety though it may have reference to many conditions, may contain many statements, and may be full of various subjects!” but he was not able to produce any authority to sustain his demurrer other than a single Texas case, viz — Jackson v. State, 77 S. W. Rep. 223 , which we are not able to accept as controlling.

The practice appears to be strongly against this contention. In 13 Enc. Pl. and Pr. p 47, it is said: “It is not necessary, in a complaint for libel, to set out the whole of the obnoxious publication in which the libel appears. It will be sufficient to set forth such parts of the libel as the plaintiff relies on,” and this text is supported by decisions from numerous Courts.

The author of this article in the Enc. Pl. & Pr. adds, “it would seem that if any omitted parts explain those set out, the defendant may give them under the general issue.” The same is stated to be the law in 25 Cyc. 448. It was so held in Com. v. Harmon, 2 Gray, 289 , citing 3 Chitty's Crim. Laiv, 375.

In American Book Co. v. Kingdom Pub. Co., 71 Minn. 363 , the entire article was set out, and on motion to make the complaint more definite, the Court said, “While in actions for libel it may not be necessary to set forth an entire article, it is absolutely necessary to set forth in precise words such passages as are claimed to be actionable,” and the motion was refused. In State v. Dowd, 39 Kansas, 412, the whole article was set out in the information. There was a motion to quash on the ground that the charge was too indefinite and uncertain, ’ but the motion was refused.

In State v. Smith, 7 Lea (Tenn.) 249, the whole letter was set out in the indictment, which was held good on motion in arrest of judgment. The Court said “The entire publication is set out, and thus the principle and ⁶⁵⁰ letter of the rule which requires the libelous matter to be set forth verbatim is complied with.” In Evening Post Co. v. Richardson, 113 Ky. 641 , the entire article was held to be admissible in evidence though parts were not libelous. In McClure v. Review Pub. Co., 38 Wash. 160 , there was a demurrer to the complaint, and also a motion by defendant to make the complaint more definite and certain by incorporating a copy of the entire publication.

This motion was granted and the ruling was excepted 'to. On appeal the Court said. “An alleged libelous newspaper article, like every other instrument of writing, must be construed in connection with, and with reference to the entire article, and no intelligent construction can be obtained by a perusal of excerpts or disconnected extracts from the publication,” and the ruling was affirmed. This case illustrates an extreme view, going to the extent of holding that the complaint or indictment is necessarily indefinite and uncertain unless the whole article is set out, and we are not 'to be understood as adopting that view. But if that view were adopted we should be compelled to sustain the indictment in this case.

In Singer v. N. Y. Times Co., 74 N. Y. App. Div. 380, the complaint set out a lengthy article in full, and averred that the matter so' printed