Commonwealth v. Morgan

Colt, J.

1. The questions raised upon the motion to quash are not insisted upon in the defendant’s argument, and need no consideration.

2. The Commonwealth must prove the application of the words used to the person against whom the libel is directed; and the meaning of the defendant in the language used, when it is ambiguous or consists of expressions not in common use, but having a known meaning among certain persons, may be explained by those who know their application. 2 Phil. Ev. (4th Am. ed.) 718, 734 note.

3. The defendant was properly not permitted to show that the person libelled, in conversation with the witnesses, treated some of the matter charged in the libel as a joke originated by himself. In a criminal prosecution for libel, it is not material to inquire whether the person attacked has actually suffered from injured feelings. The public scandal and the injury to public morals remain, however lightly he may have treated it. Nor was it material to show that he originated the rumor. The defendant did not offer to give in evidence the truth of the charge in the libel, under the Gen. Sts. c. 172, § 11; and this evidence could only have .been competent under such an offer, as in the nature of an admission. And besides, this offer at best only reached a small portion of the libellous matter published.

4. The defendant then offered to prove that he had never seen the alleged libel, and was not aware of its publication till it was pointed out to him by a third party; and that an apology and retraction was subsequently published in the same newspaper.

When a libel is sold in a bookseller’s shop, by a servant of the bookseller, in the ordinary course of his employment; or is published in a newspaper; the fact alone is sufficient evidence to charge the bookseller, or the proprietor of the newspaper, with the guilt of its publication. This evidence, by the earlier English decisions, was held not to be conclusive, but the defendant was permitted to show, in exculpation, that he was not privy, nor assenting to, nor encouraging, the publication. See 1 Lead. Crim. Cas. 145 ; notes to Rex v. Almon, 5 Burr. 2686. Afterwards, such evidence was held conclusive, upon the ground that it was necessary to prevent the escape of the real offender behind an irresponsible party. Rex v. Gutch,, Mood. & Malk. 433. Rex v. Walter, 3 Esp. 21. In both these cases, the defendants offered to show that they were perfectly innocent of any share in the criminai publication, and that, although proprietors of the papers, they were living at a distance from London, the place of publication, taking no share in the actual publication, and in one case confined by illness when the paper complained of appeared. It was ruled by Lord Kenyon and Lord Tenterden to be no defence. But now, by a recent English statute, a defendant is permitted to prove that such publication was made without his authority, consent or knowledge, and did not arise from want of due care or caution on his part. St. 6 & 7 Viet. c. 96.

The rule thus made positive law is in strict accordance with those just principles which ought to limit criminal liability for the acts of another, and which have been recognized in the decisions of this court. Criminal responsibility on the part of the principal, for the act of his agent or servant in the course of his employment, implies some degree of moral guilt or delinquency, manifested either by direct participation in or assent to the act, or by want of proper care and oversight, or other negligence in reference to the business which he has thus intrusted to another. The rule of civil liability is broader, and the principal must respond in damages for the default or tortious act of the agent or servant in his employment, although he had no knowledge of it, or had actually forbidden it in advance and exercised due care to prevent it.

In Commonwealth v. Nichols, 10 Met. 259, it was held that a shopkeeper is criminally liable for an unlawful sale of spirituous liquor in his shop, made with his assent by a servant or agent employed in his business. But such sale is only primá facie evidence of assent. And it was said that “ if a sale of liquor is made by the servant without the knowledge of the master, and really in opposition to his will, and in no way participated in, approved or countenanced by him, and this is clearly shown by the master, he ought to be acquitted.” It is to be remarks i with reference to this case, that the question whether the sale was really against the defendant’s will is for the jury upon all the evidence, and that the facts that the profits of the business were received by the defendant, and that there was an absence of proper precautions to prevent the illegal traffic, would justify an inference of his approval.

In The King v. Dixon, 3 M. & S. 11, the defendant was convicted of selling unwholesome bread, upon proof that his foreman had by mistake put too much alum in it. There was no evidence that the master knew of -the quantity used in this instance. But Bayley, J., said: “ If a person employed a servant to use alum, or any other ingredient, the unrestricted use of which was noxious, and did not restrain him in the use of it, such person would be answerable if the servant used it to excess, because he did not apply the proper precaution against its misuse.”

It is the duty of the proprietor of a public paper, which may be used for the publication of improper communications, to use reasonable caution in the conduct of his business, that no libels be published. He is civilly responsible for the wrong, to the extent indicated; and he is criminally liable, unless the unlawful publication was made under such circumstances as to negative any presumption of privity, or connivance, or want of ordinary precaution on his part to prevent it. 3 Greenl. Ev. §§ 170, 178.

We are of opinion that the offer of the defendant did not go far enough, in view of the law thus stated, to rebut the presumption of guilt arising from the publication of this libel. The facts offered may be true, and yet entirely consistent with the fact that the conduct of the newspaper was under his actual direction and charge, at a time when he was neither absent from home nor confined by sickness, and when his want of knowledge would necessarily imply criminal neglect to exercise proper care and supervision over the subordinates in his employ. It is consistent also with such information in this instance, in regard to the proposed libellous attack, as should have put him on inquiry; and with the fact that the general management of the paper was of such a character as to justify the inference that the defendant approved of or connived at publications of this description, and had given his general assent to them. Under such circumstances, the defendant ought not to be permitted to escape on the plea that he had not seen the particular article and did not know of its publication.

As to the evidence offered of a subsequent apology and retraction, the answer is that it is only a matter in mitigation of sentence. The crime is not purged by it.

5. The evidence to show that the defendant was the publisher was sufficient without the testimony of the defendant, who offered himself as a witness and was sworn. His testimony on cross-examination was admissible, although it tended to criminate himself. By taking the stand as a witness, he waived his constitutional privilege of refusing to furnish evidence against himself, and subjected himself to be treated as a witness. St. 1866, c. 260. Commonwealth v. Mullen, 97 Mass. 545. Commonwealth v. Bonner, Ib. 587. Under our rule, the cross-examination of a witness is not confined to the matters inquired of in chief. Moody v. Rowell, 17 Pick. 490, 498.

6. If the allegation in the indictment, that the libel was published in a newspaper printed and published by the two persons named, is to be regarded as a matter of essential description, and as equivalent in common acceptation to an allegation that the two were proprietors of the paper, then, although a purely redundant allegation, it would formerly have been necessary to prove it as alleged. Commonwealth v. Varney, 10 Cush. 402. How by the St. of 1864, c. 250, § 1, no variance between the writing and the paper produced in evidence is material, if the identity of the instrument is evident, and it is described so as to prevent all prejudice to the defendant. Commonwealth v. Hall, 97 Mass. 570.

7. The other rulings at the trial do not appear to be erroneous.

8. The verdict of the jury was equivalent, as matter of law, to a general verdict of guilty. It was the same as a finding that the defendant was guilty of the publication of the libel, as charged in the indictment. And although the charge is that the defendant composed, wrote, printed and published the alleged libel, yet it is well settled that it is supported by proof of publication alone. 3 Greenl. Ev. § 169. The motion in arrest of judgment was rightly overruled.

Exceptions overruled.