State v. Robbins , 1877 Me. LEXIS 147 ( 1877 )

Appleton, C. J.

This is an indictment for a libel to which the defendants have demurred.

The indictment is upon R. S. 1871, c. 129, § 2, which is in these words: “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 by imprisonment less than one year, and by fine not exceeding one thousand dollars.”

The allegation in the indictment in each of the numerous counts is, that the defendants “unlawfully and maliciously did compose and publish, and cause and procure to be composed and published in a certain public newspaper, called the Rockland Opinion, a certain false, scandalous, and malicious and defamatory libel of and concerning,” &c.

I. The objection is taken that the count is double and bad on demurrer. The true rule is thus stated by Wharton in his American Crim. Law, § 390 : “When a statute makes two or more distinct acts, connected with the same transaction, indictable, each one of which may be considered as representing a stage in the same offense, it has in many cases been ruled they may be coupled in one count.” Here but one offense is charged. “An indictment,” says Metcalf, J., in Commonwealth v. Twitchell, 4 Cush. 74, “which avers that the defendant ‘did write and publish, and cause to be written and published,’ a malicious libel, is not bad for duplicity. 2 Gabbett Crim. Law, 234. 3 Ch. Crim. L. (4th Am. ed.) 877, et seq.”

II. The word “unlawfully” is not in the statute, but its insertion in the indictment does not vitiate it. If the fact as stated be illegal, it is unnecessary to say it is unlawful. If it be legal, the stating it to be unlawful, will not make it so. The only case when it may be necessary to use it, is where it is a part of a description of a statute offense; but it is not so here. It may be rejected as surplusage.

III. It is undoubtedly the safer course to follow the language of the statute in describing the offense charged in the indictment. But it has been repeatedly held that words equivalent in their meaning to those in the statute may be used. So, the use of words of more general signification, but clearly including in their meaning all that is embraced in the language of the statute has received in repeated instances, judicial sanction. But wherever there is a change of phraseology, and a word not in the statute is substituted in the indictment for one that is, and the word thus substituted is equivalent to the word used in the statute, or is of more extensive signification than, and includes it, the indictment will be sufficient. Thus, if the word knowingly be in the statute, and the word advisedly be substituted for it in the indictment, or the word willfully in the statute, and maliciously in the indictment, the words “advisedly” and “maliciously” not being in the statutes respectively, the indictment would be sufficient. 1 Wharton Am. Crim. Law, § 376. Rex v. Fuller, 1 B. & P. 180.

The words of the statute are not used. The indictment is under that portion of the section which prohibits the willfully publishing or circulating a libel. The indictment alleges a malicious publishing, not a willful publishing of the libel in question. A man may do an act willfully, and yet be free of malice. But he cannot do an act maliciously, without at the same time doing it willfully. The malicious doing of an act includes the willful doing of it. Malice includes intent and will.

This indictment, it should be borne in mind, is not for knowingly and willfully aiding in publishing a libel, but for willfully publishing or circulating it. Demurrer overruled.

Walton, Diceebson, Babeows, Viegin and Petebs, JJ\, concurred.