
    Hodges vs. The State.
    The transmission oí a sealed letter by mail, containing libellous matter is indictable. The indictment must charge, that it was sent with the intention of provoking a breach of the peace. #
    Rose prosecuted Hodges by indictment, in the Circuit Court of Claiborne county, for a libel, which charged Rose with lying and perjury.
    The indictment charged, that Hodges “did write and publish a false and malicious libel, in the form of a letter, directed to the said George W. Rose, containing diverse false and scandalous matters and tihings of him the said Rose, which said libel is of the tenor and to the effect following, to wit,” &c. &c. The indictment seis out the libel without more, and concludes in the usual form.
    The defendant pleaded not guilty, and the issue thereupon was tried by Judge Robert M. Anderson, and a jury, at the November term, 1842.
    It appeared that the prosecutor took a letter out of the post office at Tazewell, in the county of Claiborne, addressed to him, post marked ‘Miltonville, N. Carolina,' which he exhibited to several persons, who read it. It was in the hand writing of the defendant. The letter contained the charges against the prosecutor set forth in the indictment, and wa's sealed up when lie took it out of the post office.
    Judge Anderson charged the jury, that if the defendant sent by mail a libellous letter, sealed up, directed to the prosecutor, and the prosecutor received it, this amounted to a publication at the place where he received it; and that if defendant wrote a libellous letter in North Carolina, and it was published by the reception of it in Tennessee, this would sustain the indictment. It was not necessary it should have been written in Claiborne county. The jury found the defendant guilty. The defendant moved the court for a new trial, which being overruled, and the defendant fined $25, he appealed.
    
      S. R. Rodgers, for the plaintiff in error.
    There was no publication of this libel shown in proof. The transmission of _a letter sealed up, by mail, which contains a charge of a crime or other libSlous matter, to the person charged therewith, is not indictable on the ground of injury done by publication; for there is no publication by the act of sending. It is indictable on the ground of its tendency to produce a breách of the peace. The indictment must charge in such a case, that the transmission was with a view to provoke a breach of the peace. This has not been done, and the evidence does not sustain the indictment.
    See 2 Chitty C. L. 888, 889, 875. Roscoe, 606. 2 Yerger, 581. 1 Russell, 212, 213.
    The Attorney General, on behalf of the State,
    submitted the case to the court.
   Tuexey, J.

delivered the opinion of the court.

This is an indictment against Hodges for a libel, for which he was tried and convicted. The proof establishes the fact, that the libel complained of was written by the defendant, and sent to the prosecutor, Rose, through the post office. It does not appear that there was any publication of this libel to a third person; and the indictment contains no allegation, that the intention of the defendant, in sending the letter, was to provoke the prosecutor to a breach of the peace. The Judge charged the jury, that “if defendant sent, by mail, a libellous letter, sealed up, directed to the prosecutor, and the prosecutor received it from the post office where he resided, that this amounted to a publication in law.” This charge is erroneous. I; The reception of a libellous letter, which has not been read or heard by some third person, is no publication of a libel, though the offence of sending a libellous letter is indictable, provided the bill of indictment allege, that the intention of sending it was]to provoke a breach of the peace, j In Hawkins, vol. 1, ch. 28, sec. 11, it is laid down, that though there be no publication, yet the sending a letter to the party himself, filled with abusive language is indictable, because it tends to a breach of the peace, in order to revenge the insult received. In 2 Starkie’s Rep. 243, it is held, that “if there be no publication to a third person, the indictment must allqj|;e an intention to provoke a breach of the peace.” 3 Chitty Criminal Law, 871. The proof then in this case did not support the bill of indictment. The charge of the Judge upon the law, as to publication, was erroneous, and a new trial should have been awarded.

Let the judgment be reversed.  