
    Sharff against The Commonwealth.
    1810. Lancaster, Saturday, June 2.
    Upon an indictment for writing and publishing a libel on the characters of A and B, and also upon the memory of C deceased, the jury found the defendant “guiltv of writhing: ¡id pub- “ iishhig' a bill “ of scandal “ against A and “ B, but not “ guilty as to r< any Cdec-eas- “ ed.” Judgment reversed, because the defendant was not found guilty of the oiknee ch.\r;>vd in the iudictiuent.
    Clerical errors muy be am-ink d in a crimin.il, ns well as in a civil <:ene.
    IN ERROR.
    -ill RROR to the Quarter Sessions of Dauphin.
    
    The plaintiff in error was indicted for writing and publishing a libel on the characters of Michael Ley and Leonard Rainier, and also upon the memory of John Ramler deceased. The jury, many of whom were Germans, found the following verdict: “ Guilty of writing and publishing a bill of scan- “ dal against Ley and Rambler, but not guilty as to any Ram- “ lev deceased.”
    Several errors were assigned and argued in this court; but the only one upon which the court thought it necessary to express an opinion, was, that the jury had not found the defendant guilty of the offence laid in the indictment, and that no judgment ought to have been entered upon their verdict.
    
      Goodwin and Fisher for the plaintiff in error.
    This verdict does not find the matter in issue at all, or it finds it only by argument and inference, in either of which cases it is void. A bill of scandal, taking these words in any legal sense which can be given them, never can be synonymous with a libel, which is the offence charged, because, giving to each word its technical meaning, it is an indictment of slander; taking them in their popular sense and as a translation from the German, they mean a little scandalous report of less consequt nee than a libel. It requires an argument, and a refined one too, to make the finding and the charge the same; and this is never permitted even in a civil case; 5 Com. Dig. Pleader S. 22. 24; a fortiori in a case of this kind. It is impossible to say what íhr jury did mean; but if by any construí cion they could mean that which if expressed would acquit the defendant, the verdict is bad, and the judgment erroneous. Rex v. Woodfall. 
      
       Now it is clearly possible that they meant some other scandal than the libel in the indictment, for there is nothing in the finding, which refers to the indictment. The court therefore, must intend, must guess, something which does not appear, in order to support the verdict; and this they cannot do. It is not the error of a clerk, in point of form; the verdict wants substance; but a verdict in a criminal case cannot be amended by the clerk’s notes even where there is onlv -i misprision. Bold's case 
      
      The King v. Keite 
      . Neither can the objectionable part of the verdict be rejected as surplusage, because there is no complete finding without those words, any more than with them The jury do not find the defendant guilty in manner and form as he stands indicted, but guilty of writing and publishing, which may well have been without malice, part of the essence of the crime. So that every way the verdict is bad.
    
      Elder and Hopkins for the Commonwealth.
    
    There. is nothing defective in this verdict, but the want of words of reference to the indictment; and this is a clerical error in entering the verdict, which may be set right, for there is no doubt that such errors may be amended even in criminal cases. Had the jury found that the defendant was guilty of writing and publishing a bill of scandal us he stands charged., where could have been the doubt? And yet these are merely technical words, which it is the duty of the clerk to add, and which in The King v. Woodfall, the court directed to be added. All incidí nt and necessary circumstances may be supplied bv intendment. 5 Com. Dig. Pleader S. 31. If upon an indictment for murder, that the defendant feloniously wounded A., of which wound he died, the jury find that the prisoner did give a wound to A, together with the circumstances which attended the giving it, and that he died of the wound, am! then conclude, “ if upon the whole matter the court shall “ hi of opinion that the killing was murder, then we find “ thv- defendant guilty of murder in the manner it is charged “ in t>indictment,” — this is a good finding, although it is not said that the wound was given feloniously; it must be intended. Mackally's case 
      . 7 Bac. Abr. 31. By a construction still .more natural it may be intended in this case, that the ofltnee of which the defendant is found guilty, is the one referred to in the indictment, as no other offence was before jury, if then the words a bill of scandal he, so referred, the verdict is certain enough; if, as is said, their meaning cannot be ascertained, then they may be rejected as insensible. The verdict finds the issue without them; and wherever this is done, and the jury go further and find what is not in issue, the latter may be rejected. 7 Bac. Abr. 20.
    
      
      
        5 Burr. 2669.
    
    
      
      
         1 Salk. 53.
      
    
    
      
      
         1 Ld. Ray. 138.
    
    
      
       9 Rep. 63.
    
   Txxghman C. J.

The counsel for the Commonwealth have considered the entry of the verdict as a clerical error, and as such, subject to amendment. There is'no doubt but a clerical error may be amended, even in a criminal case. But there does not appear to be any clerical error in this instance. If there be an error, it is not of the cleric, but of the jury. We must suppose that the verdict was entered as it was given.

A bill of scandal is a singular expression, A good many of the jury were Germans; perhaps it is a translation from the German to the English language. The counsel for the defendant say, that according to the German understanding it means a scandalous report. For my own part, I cannot affix any definite meaning to it, and therefore I cannot say, that it is an of-fence of the nature of that, which is charged in the indictment. But that is not the only objection to this verdict. If it had said, guilty of the bill of scandal, with which the defendant stands charged, or even guilty of the bill of scandal, without more,'we Should have been certain that the jury referred to the indictment; and then perhaps it might hav«? been faii'ly construed “ guilty of the offence chax-ged in the “ indictment.” But the words are guilty of a bill of scandal. A bill, is very different from the bill. Grammatical niceties should not be resorted to without necessity. But it would be-extending liberality to an unwarrantable length, to confound, the articles a and the. The most unlettered persons understand that a is indefinite, but the refers to a certain object. When the jury say, that the defendant is guilty of writing xt bill of scandal, I am not assured that they mean the scandalous matter mentioned in the indictment; and I therefore cannot say, that they have found him guilty of the offence, for which he was indicted. This verdict ought not to have been received. The court should have informed the jury of .its Imperfections, and have desired them to express their meaning plainly. Í am of opinion that, the judgment is erroneous, because it does not appear on the record, that the defendant was found guilty of the offence charged in the indictment.

Yeates J. was of the same opinion.

Brackenridge J.

The word libel is a translation of the word libellus, and means a little book, or paper. But it must be defamatory to make it a libel in the legal acceptation of the-term. It must'also be malicious. It is so defined by the commentator. 4 Blac. 149. “ Malicious defamation of any person, made public by writing, printing, signs or pictures.” Malice then is a necessary ingredient to constitute a libel. Malice must be laid in the indictment, otherwise there is no charge, to which the defendant would be bound to answer; no,charge on the face of the indictment, which would warrant a sentence.

I admit this is not the doctrine of lord Mansfield in the dase of The King v. Woodfall, 5 Burr. 2666. He asserts “ that whether the paper was a libel, was a question of laxe upon the face of the record;” and he adds what he thinks proves it, “ that after a conviction, a defendant may “ move in arrest of judgment, if the paper is not a libel.” Doubtless, after conviction, the defendant may allege in arrest of judgment, that taking the fact as found by the jury, or implied in their finding, viz. that the writing was published by the defendant, it did not amount to a libel. For maliciously publishing, is a fact which must go to constitute the offence, and which must be found by the jury. Fie goes on to say “ no proof of express malice ever was required, and in “ most cases is impossible to be given.” That is all true; and the malice may be inferred from the writing. But it is the jury that must infer it. It is a fact that must be found by the jury; for maliciously publishing must be charged, and it is the whole of this fact that must be found. But it is fallacious to infer from this, that without such finding he could infertile guilt of libelling, Lord Mansfield laid down the inference of malice to be matter of law; but the doctrine was exposed by Junius. In his letter to lord Mansfield of Nov. 14th 1770, Junius observes: “The doctrine ymu have “ constantly delivered in cases of libel, is another .powerful evidence of a settled plan to contract the legal power “ pf juries, and to draw questions inseparable from fact, with- “ in the arbitrium. of the court. In criminal prosecutions the “ malice of the design is confessedly as much the subject of “ consideration to a jury, as the certainty of the fact. Why “ force twelve men to pronounce a fellow subject a guilty “ man, when almost at the same moment you forbid their “inquiring into the only circumstance, which in the eye of “ law and reason constitutes guilt, the malignity or innocence “ of his intentions? Your charge to the jury in the pro- “ secution against Woodfall contradicts the highest legal “ authorities, as well as the plainest dictates of reason. It “ began as usual with assuring them that they had nothing “ to do with the law; that they were to find the bare fact, “ and not concern themselves about the legal inferences “ drawn from it; that the jury were not competent judges “of the law, and that it did not fall within their jurisdic- “ tion; and that as to them, the malice or innocence of the “ defendant’s intention, would be a question coram non ju- dice. But with the simple information of common sense, I “ assert that if a jury, or any other court of judicature (for “jurors are judges) have no right to enter into a cause or “ question of law, it signifies nothing whether their decision “ be or be not according to law. Their decision is in itself a “ mere nullity; the parties are not bound to submit to it; and “ if the jury run any risk of punishment, it is not for pro- “ nouncing a corrupt or illegal verdict, but for the illegality “ of meddling with a point on which they have no legal au- “ thority to decide.”

These observations bear upon the point before us. For if malice is a fact which must be found by the jury, the first question here will be, has it been fouud? It is charged in the indictment, and the plea goes to it, not guilty. The finding guilty goes to the plea, and had nothing else been added, I admit that the words of reference in manner and form would have been included, and-would, have embraced the fact of maliciously publishing. But the generality of the term guilty is restrained by the special finding, guilty of a bill of scandal, and we are reduced to the necessity of inquiring- what a bill of scandal is, of which the defendant is found guilty. Billa vera is an indorsement which the grand jury used to make upon the indictment, sent up to them, and now in English, a true bill. As Black. 305. A bill of scandal must therefore mean an indictment of scandal. Scandal, and slander, mean the same, in the language of the law. Scandalous and slanderous words; scandalous words that may subject a man to the penalties of the law; scandalum magnatwn, or words spoken in derogation of a peer, a judge, 'or other great officer of the realm. 3 Black. 122, 3. Esclandre, is the word which is used in the statute 3 Ed. 1. c. 34, and which in the statute book is translated slander. 2 Rich. 2. c. 5. I take it to be the same thing therefore as if the finding of the jury had been, guilty of an indictment of slander. Butwhetherthe finding guilty of an indictment, will carry with it the finding guilty of the defamatory writing as laid in the indictment, that is the publishing maliciously, is not so conclusively certain, as not to require some astutia to make out, which I am not satisfied with using in a criminal case. And unless I could make out malice to be included, I could not say that the guilt was found. For the guilt of publishing does not include maliciously publishing. A libel might be innocently published by a man who could not read, and not knowing what it was; as if imposed upon him for an old ballad. And though he might give this in evidence, in which case the jury ought not to find guilt, yet there is a fallacy of lord Mansfield iu the application of this principle in Wood-fall's case. For though where the act is unlawful, the law implies a criminal intent, yet the intent is matter of fact, and unless on demurrer to evidence, as in other cases, it is left to the court, it is the jury only that can infer it.

•. But' supposing guilty in manner and form as laid in the indictment, to be included in the finding in this case,the pinch remains still in the term, a bill of scandal. It is not the bill. The is an article which particularizes the subject of which we speak. A, an, one, any one, are all words of the same family. It is as if said, one bill of scandal. Horne Tooke, Epea Pteroenta 324. So that the term a, does not attach necessarily to the bill or indictment to be tried. It is impossible not to have a strong inclination of mind to believe that the jury meant the indictment tried; but there is a possibility, that they might from their own knowledge have some evidence of, and mightjmean, another bill; and if such laxity in the finding was admitted, it might endanger the certainty of convictions, and let in a license to jurors to wander from the bill before them, and to think of other offences of a like nature, of which they might believe the defendant guilty. As in my knowledge in the western parts of Virginia, bordering on Pennsylvania, where, on an indictment for stealing sheep, they found the defendant guilty, because in their own knowledge, or from some evidence before them, he had stolen wool. They had thought that it all came to the same thing. Let the thing stolen be what it might be, he was a thief, and ought to be found guilty.

On this ground therefore I think the judgment must be reversed.

Judgment reversed.  