People v. Isaacs

Cowing, J.

Is this statement per se a libel as against the complainant Fuller? If yes, the indictment should be sustained and judgment given for the people upon the demurrer. If no, the demurrer to the indictment should be sustained and judgment ordered for the defendant thereon.

It is an elementary principle of pleading that where the matter charged in the indictment as constituting the libel is non libelous upon its face, it is necessary to render it so by explaining its real meaning by an innuendo. The text-books and reports are full of law sustaining this principle •; in fact, the district attorney, in his brief, cites numerous authorities sustaining it, but claims that section 289 of the Code of Criminal Procedure abolishes the rule and makes it no longer necessary to explain by means of an innuendo matter not obviously libelous. In my judgment, section 289 of Code of Criminal Procedure makes no such change in the rules of criminal pleading as is claimed by the district attorney.

Section 289 reads, “ An indictment for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeléd, of the defamatory matter on which the indictment is founded, but it is sufficient to state generally that the same was published concerning him; and the fact that *152 it was so published must be established on the trial.” It will be observed that the foregoing section does not change in the least the necessity of explaining an ambiguous term, but only renders it no longer necessary to set forth any extrinsic facts for the purpose of showing the application of the libelous matter to the complainant.

The blew York Code of Civil Procedure, by section 164, dispenses with the necessity of setting out in the complaint in civil actions allegations of extrinsic facts showing the application of the defamatory matter to the plaintiff in almost the same words as are contained in section 289 of the Criminal Code, and yet Justice Willabd held, in Pike V. Van Wormer, reported in 5 How. Pr. at page 175, “ that section 164 of the Civil Code does not dispense with the necessity of an innuendo when it becomes essential to show the meaning of the words themselves,” and the learned judge goes on to say that “ the fact that the Code dispenses with the averment of extrinsic facts heretofore necessary to permit the application of the words to the plaintiff, justifies the inference that in other respects the rule formerly prevailing remains unchanged.”

The same construction was put upon section 164 of the Civil Code, in the case of Caldwell v. Raymond ( 2 Abb. Pr. 196 ), and in my opinion the reasoning of those cases applies with greater force to the proper construction of section 289 of the Criminal Code, for it certainly will not be for a moment contended that the averments in an indictment should be less certain and specific than in a complaint. It follows from the above reasoning that an innuendo is still necessary and essential in an indictment to explain an ambiguous expression claimed to be libelous and defamatory, and that its absence in such case renders the indictment fatally defective.

Whether or not in this State (where adultery is not punished as a crime), if the averment in the indictment were that the complainant committed an abomination with defendant’s wife, and that had been followed by an innuendo explaining that it was meant thereby that the complainant committed adultery with the defendant’s wife, it would have rendered the averment libelous, I do not claim to decide in this opinion, for the indictment contains no such explanation. It would be clearly *153 libelous in these States where adultery is punishable as a crime.

Let us now proceed to examine the article, or so much of the same as refers to the complainant Fuller, and see if it is libelous per se / and it must not be overlooked that we are only to examine so much of said article as may under any fair construction be considered, as matter of law, to defame the complainant.

Fuller, the complainant, is charged with committing an “abomination” with defendant’s wife. Both Worcester and Webster define the word “ abomination ” to mean “ anything wicked.” Now, I need hardly say that there are many things which the complainant and defendant’s wife may have done together which, in the estimation of a large class of the community, would be considered wicked, and therefore an “ abomination.” For . instance, they may have sat down and, with great relish, eaten a savory pork tenderloin, which would be considered by some to be “ an abomination in the sight of the Lord ■but I apprehend that no one would consider such a charge to be a criminal libel as against the complainant. Many other acts might be mentioned which would be considered wicked, and therefore “ abominations in the sight of the Lord.” But one is sufficient to illustrate the absolute necessity of explaining a word so general in its meaning as “ wicked,” or “ abomination,” by means of an innuendo.

I can come to but one conclusion—that the article set out in the indictment is not libelous per se as against the complainant, and if that part (which the People claim is so against him) has a hidden meaning which makes it so, that meaning should have been explained by means of an innuendo, which it does not do.

The demurrer is sustained, and judgment ordered for the defendant thereon.