State v. Singer , 101 Me. 299 ( 1906 )

Savage, J.

Demurrer to indictment for libel. It is claimed that the indictment is faulty in several particulars, only one of which do we have any occasion to notice.

The indictment charges that the defendant “did wilfully and maliciously libel and defame one Nathaniel J. Hanna .... by printing and publishing, or causing to be printed and published, in a newspaper” .... a certain libellous and defamatory’ statement. We think this form of charging, in the disjunctive, is fatal. “It is an established rule” says Bishop, following Chitty, “ in respect to the statement of the offense in the indictment that it must not be stated in the disjunctive, so as to leave it uncertain what is really intended to be relied upon as the accusation.” 1 Bishop on Criminal Procedure, 2nd. Ed. sect. 585;' 1 Chitty on Criminal Procedure,. 2nd. Ed. sect. 585; 1 Chitty .on Criminal Law, 641. The rule applies even in civil pleading. 13 Ency. PL & Pr. 45; 1 Chitty’s Pleadings, 15th Am. Ed. 237.

This disjunctive charge violates the rule of certainty in criminal pleading. It is elemental knowledge that all essential matters must be alleged with such certainty that the defendant may be apprised of the precise nature of the charge against him, and this, that he may be able to prepare to meet the charge by pleading or proof, and that the final judgment may protect him against future charges for the same offense. To be charged with printing and publishing a libel is one thing and to defend against it, evidence of one kind may be required, while to meet the charge of having caused a libel to be printed and published may require evidence of another and entirely different character. The distinction goes to the essence of the charge. In State v. Barnes, 32 Maine, 530, the defendant was,directly charged with the publication of a libel. The manner of the publication was laid in the disjunctive, that is, “by letter, circular or-pamphlet.” The court held, without discussion, that this description was not of the essence of the offense, but was only of the mode of publication which was unimportant. This seems to bo contrary to the general run of authorities. But however that may be, we think that this rule should not be extended to a case where the alternative is not in what manner the defendant himself made the publication, but whether he did make publication himself, or caused or procured another to make it. The cases are not alike.

Exceptions sustained. Demurrer sustained. Indictment quashed.