State v. Barnes , 32 Me. 530 ( 1851 )

Shepley, C. J.,

orally.—The indictment alleges that the supposed libel was sent to several persons named. The defendant contends that, though unnecessary to have alleged the sending to more than one person, yet having alleged the sending to many, the whole allegation must be proved.

Whatever allegation is descriptive of the offence must be proved. But the allegation of sending to more than one person was not descriptive of the offence. It was only an averment of the mode in which the offence was, in part, effected. The ruling of the Judge on that point was therefore correct.

2. The defendant contends that no publication is alleged. But we think otherwise. The allegation of sending the libel and that thereby the defendant published it, is a sufficient averment of publication.

3. It is however insisted, that the averment, made after alleging the sending to several persons, that the defendant “ thereby published” the libel, was but a conclusion of law, and not the allegation of a fact.

If that view of the case was correct, it would be fatal to the prosecution. But it is otherwise. The allegation is that the defendant did thereby publish. That he did thereby publish to some one of the persons, was a fact necessary to be proved. It was not therefore a mere conclusion of law.

4. It is also insisted that, when the government allege the publishing of a written “ libel,” it should all be set out in the indictment.

The term “ libel,” as used in this indictment, imports a defamatory publication, written and printed. And it is not ground of objection that it is used in that sense. Suppose then those words were substituted. It is not requisite that, in an indictment for a defamatory publication, the whole of a book containing it should be set out.

5. Another objection is, that the indictment does not allege the residence or addition of said J. B. But such an allegation is not requisite.

6. Though described in the disjunctive, (letter, circular, or pamphlet,) that description is not of the essence of the of-fence, but is only of the mode of publication, viz : that the libelous matter was published in one or the other of those forms; and it is quite unimportant which.

7. The former conviction should have been specially pleaded. It could not come in by way of evidence under a plea of not guilty.

Exceptions overruled. Case remanded.