
    
      The State vs. James M. A. Henderson.
    
    Every indictment must contain and set forth all the ingredients of an offence, and no omission, in such statement, can he supplied by evidence or innuendo.
    
    In an indictment for a libel, where it does not appear from the paper itself who was its author, or the persons of and concerning whom it was written, or the purpose for which it was written ; each of these should be explicitly averred, as facts for the consideration of the jury.
    Where the persons, alleged to have been libelled, are alluded to in ambiguous and covert terms, it is not sufficient to aver^ generally, that the paper was composed and published, “of and concerning,” the persons alleged to have been libelled, with innuendos, accompanying the covert terms, wherever they occur in the paper as set out in the indictment, that they meant those persons, or were allusions to their nam es. There should be a full and explicit averment, that the defendant, under and by the use of the covert terms, wrote of and cbn-cerning the persons, &c.
    Where a paper is not libellous on its face, hut possesses a latent meaning which renders it libellous, the latent meaning must be explicitly set forth, by way of averment or colloquium, so as to make it appear on the face of the indictment, that the paper- is a libel.
    The office of an innuendo, is not like that of an averment, to charge facts, but is only to point out and refer to matter already expressed; and for that reason evidence cannot be introduced to support or explain an innuendo.
    
    Where a publication is malicious, and its obvious design and tendency is to bring the subject of it into contempt and ridicule, it will be a libel, although it imputes no crime liable to be punished with infamy.
    
      Before Frost, J. at Charleston, Fall Term, 1844.
    This was an indictment for a libel.
    The first count stated: That James M. A. Henderson, late of Charleston, in the district and State aforesaid, being a person of an evil, wicked, and malicious mind and disposition, and unlawfully, wickedly and maliciously, devising, contriving and intending, as much as in him lay, to scandalize, vilify and defame, divers good and worthy citizens of the said State, to wit, one Allen Spencer, one John Lord, and one Robert H. Quash, otherwise called Robert H. Quash junior, and to bring them the said Allen Spencer, John Lord and Robert H. Quash, junior, into public scandal, infamy and disgrace, and to injure, prejudice, and aggrieve them, the said Allen Spencer, John Lord and Robert H. Quash, junior, on the sixth day of July, in the year of our Lord one thousand eight hundred and forty four, with force and arms, at Charleston, in the district and State aforesaid, of his great hatred, malice, and ill will, towards the said Allen Spencer, John Lord and Robert H. Quash, junior, unlawfully and maliciously did compose and publish, and cause and procure to be composed and published, a certain false, scandalous, malicious and defamatory libel, of and concerning the said Allen Spencer, John Lord and Robert H. Quash, junior, containing therein, amongst other things, the false, scandalous, malicious, defamatory, and libellous words and matter following, of and concerning the said Allen Spencer, John Lord and Robert H. Quash, junior, that is to say— For the Bulletin — 'Goat Racing Club. The first regular meeting of this club was held at Dickey’s, on Friday evening, June 28th. The Chairman called upon those members who had entered dogs,-to come forward and pay entrance money, (treat for the crowd.) Only four dogs were entered. At about half past ten o’clock the club started in pursuit of those' very disagreeable creatures, commonly called goats, but did not succeed in seeing any; they having, for this night only, not made their appearance. The club were about returning to their Hall, (one of Dickey’s boxes,) when the deep bay of one of the dogs was heard in Berresford street, “swift from their covert the merry pack fled,” but. only one other dog took the scent, making but two on the field. The race was very exciting, and it was a beautiful sight to see how the two dogs stuck like leitches to him, (for it was a poor tom cat.) After running about five minutes they succeeded in killing him, though not without a bloody battle. The club having retired to Dickey’s, the roll was called, and two members fined, whereupon they took two Jerusalems apiece, and retired to their virtuous sheets, agreeing to meet the following night. Saturday night, June 29. The club met at ten o’clock; the meeting béing called to order, mascovitus, santacruis, smashers, and of course gin toddys were the first moves that were made. They being put out of sight, there (meaning their) next question was to name a Chairman ; with some difficulty they succeeded, but not until they had laced their spencers (meaning an allusion to the name of the said'Allen Spencer,) a little tighter, by taking a couple of small taughts. After a few words from Kate Kearney, the lord (meaning the said John Lord,) was called upon for his blessing, and after cruising about the city some time, they all agreed to go to the French (meaning the French Coffee House,) and sup, before they went to • their homes. Supper being over, the business was quashed, (meaning an allusion to the name of the said Robert H. Q,uash, junior,) for the night, all bands retiring about one o’clock. Which said false, scandalous, malicious and defamatory libel, he, the said James M. A. Henderson, afterwards, to wit, on the sixth day of July,' in the year aforesaid, at Charleston aforesaid, in the district aforesaid, and in the State aforesaid, unlawfully, wickedly, and maliciously, did publish and print, and cause to be published and printed, in a certain public newspaper, called the Charleston Bulletin, a free and independent press, and thereby then and there did, unlawfully, wickedly and maliciously, publish, and cause to be published, the said libel, to the great damage, scandal, and -infamy, of the said Allen Spencer, John Lord and Robert H. Quash, junior, in contempt of the laws, to the evil and pernicious example of all those offending in like case, and against the peace and dignity of the same State aforesaid.
    The second count was the same as the first, except that it did not charge that the defendant composed the libel, but only that he printed and published it.
    At the trial, after the publication was proved, the Attorney General proposed to ask Mr. Quash for the traverser’s admissions, that he was alluded to by the piece. This evidence was objected to, but admitted by the Court, and the witness proceeded to state admissions of Henderson, that they were alluded to; and also that there were words in the publication, which being in italics, were understood to convey a personal allusion; and that the publication was an entire fiction; that there was no such club, and nothing had ever been done by any of the parties, that could suggest any thing in the publication, except that the parties sometimes drank at Richard Jones’s bar, and that Jones was called Dickey.
    Under the charge of the court, the jury found the defendant guilty.
    The defendant appealed, and now moved in arrest of judgment, on the grounds— ■
    
      Í. That the paper does not purport on the face of it to be written of the parties who are said to be libelled ; that there are no averments to connect them with .the meaning of the writing; and the innuendos, which undertook to enlarge or change the sense of the words employed, are null and void. So that there is no specification of any offence beyond the mere writing and publishing of the paper itself.
    
      2. That the paper itself, on the face of it, is not libel-lous.
    And failing in that motion, then for a new trial, on the ground—
    That evidence was admitted to prove an innuendo, and to make out a different offence from that charged in the indictment, viz: the offence of writing words which are either innocent or unmeaning, in italics, and then saying that by such italics an individual is meant.
    Petigru, for the motion,
    contended. 1st. That the writing was not sufficiently charged. 2d. That the paper was no libel.
    On the first point, he cited Stark, on Sland. 281; Cowp. 684. Where a writing is ironical, and no libel appears on the face of it, the true meaning must be averred and prov-ved, 11 Mod. 86; 1 Ch. Pi. 383. An innuendo cannot of itself extend the meaning of words. It must refer to some matter previously expressed ; 5 J, R. 211. An innuendo cannot make a person certain who was uncertain before ; 4 Cok. 17, 20 ; Cro. Eliz. 838 ; Bac. Abr. Libel, A. 3 ; 1 Bin. 637; Com. Dig. case for def. G. 9, 10; 1 Saund. Rep. 243; Holt on Libel, 258. These authorities show that the innuendos here were void. ■ The indictment therefore must be judged of, as if the innuendos were not in it.
    On the second point he cited Stark, on Sland: 434; 3 Bl. Com: 125 ; Com. Dig. ease for def. F. 14.
    On the. ground for a new trial, he said no evidence, can be given to prove an innuendo. An averment or colloquium introducing new facts may be proved; 5 J. R. 210. If facts had been avered which went to show that the prosecutors' were meant, such facts might have been proved, but no such facts were averred ; 4 McC. 317.
    Bailey, Attorney General, contra.
    Cited 1 Russ. 303. The paper is libellous on its face, and the only uncertainty is as to the person. The only question is, who were the persons intended. The indictment charges that the paper was composed of and concerning the prosecutors. T hat is a sufficient inducement and averment; 5 J. R. 224; 3 Ch. Cr. L. 874; Cowp. 672.
    
      No evidence was introduced to support the innuendos, but the ^averment that the libel was published “of and concerning,” (fee. This was certainly competent, and what could be better evidence than the admissions of the defendant himself?
    
      Petigru in reply.
    The Attorney General relies upon the allegation that the writing was of and concerning the prosecutors. This is not enough to authorize the evidence. If there were extrinsic circumstances, necessary to show that the prosecutors were the persons intended, those circumstances should have been averred. The averment, of and concerning, (fee. is sufficient only when it appears on the face of the paper that the prosecutors were intended; 8 Bast, 426 ; 4 M. & S. 163.
   Curia, per

Butler, J.

The paper upon which the indictment in this case was founded, would not be intelligible without the statement of extraneous circumstances. Tt is made up of references and allusions, the true meaning of which could not be reached, even by conjecture, without explanations. Every indictment must contain and set forth all the ingredients of an offence ; and no omission in such statement can be supplied by evidence or innuendo. Evidence may sustain, and an innuendo may indicate, by mere reference, what has been before sufficiently set forth. But the one cannot be introduced, or the other employed, without previous statements, either in a full colloquium, or by explicit averments. In cases of libel, these will not be necessary, where the publication itself expresses all that is to be understood. As where A B, writes of and concerning O D, and makes an imputation, in express terms, of some crime or infamous offence. In such case the author of the paper, the person or subject spoken of, and the object of the paper, will sufficiently appear. The following language of O. J. DeGrey, in the case of the King vs. Horne, Cowp. 683, recognizes and explains what I have been saying: “It may happen that a writing may be so expressed, and in such clear and unambiguous terms, as that it may amount, of itself, to a libel. In such case the court wants no circumstances to make it clearer than it is of itself j and, therefore, all foreign circumstances introduced in the record would be only matter of supererogation. But if the terms of the writing are general, or ironical, or spoken by way of reference or allusion, although every man who reads such a writing may put the same construction on it, it is by understanding some thing not expressed in direct terms; and it being a matter of crime, there wants something more. It ought to receive a judicial sense, whether the application is just; and the fact, or the nature of the fact, on which that depends, is to be determined by a jury. But a jury cannot take cognizance of it, unless it appears on the record, which it cannot do without an averment.” In the case before the court, it does not appear from the paper itself, who was its author ; or the persons of, and concerning whom, it was written ; or the purpose for which it was written. Each of these should have been explicitly averred, as facts for the consideration and determination of the jury. Has this been done, so as to give the court a judicial understanding of the matter ? The first has been done, that is, that the defendant published the paper. But as to the other two essential particulars, there are no sufficient averments in the indictment. In the last part of the paper, the words “had laced their spencers “the lord 'was called on for a blessing “the business was quashed,” occur, and it is said that under these terms, the prosecutors were referred to. If so, there should have been an explicit averment, that the defendant, under and by the use of these covert terms, wrote of and concerning Allen Spencer, John Lord, and Robert H. Quash,‘jun. This would, then, have presented a fact for the jury, whether these were the persons thus insidiously alluded to. If the defendant meant to designate the said individuals, the next question occurs, what did he intend to impute to them ? The complaint is that he intended to fix upon them some offensive imputation, calculated to bring them into disgrace and contempt, or subject them to ridicule. If so, what was that imputation? Was it that the prosecutor and others had formed a club to indulge themselves in the silly frolic of assuming the character of dogs, and chasing goats or cats in a certain street 1 — or that the defendant had some other covert meaning not expressed by him'.2 And as it respects the other part of the paper, in which the club is represented as returning and assembling at a certain place — the French, was it the intention of the defendant to say that the prosecutors there gave themselves up to vulgar carousal, by drinking certain potations in the paper described % If so, the meaning and purpose of the defendant should have been averred; and, perhaps, to have made the averment more intelligible, it would have been as well, by way of mere introduction, or colloquium, to have set out a description of the places and persons alluded to in the publication. The gist of the charge is that the defendant maliciously made a publication of and concerning the prosecutors, under certain ambiguous terms, marked in italics, and thereby intended to impute to them certain contemptible and degrading practices. By setting out the paper, and averring that the defendant was the author of it; that under the ambiguous terms referred to, the prosecutors were meant; and that defendant intended to charge them with the practices therein described and specified, distinct issues of fact would have been made. These matters are not thus set forth by averment or colloquium. But by way of recital, it is noted, in brackets, that Spencer, Lord and Quash, were the persons whose names “were alluded to,” in the words, “laced their Spencers “the Lord was called on for a biessmg “the business was Quashed.” No such allegation had been made before, in that form ; and what is thus said is, evidently, by way of innuendo, and forms a part of the recital. It cannot be claimed as fulfilling the place of an averment. It is essentially an innuendo in its characer, and as such, cannot be enlarged, so as to embrace or express any thing of a distinct and substantive kind. The office of an innuendo is entirely indicatory; intended to point out and refer to what has been before stated ; and for that reason, no evidence can be introduced to support or explain an innuendo, it being used as a mere convenience, in composition, to relieve the mind from confusion as to names and other matters that have been frequently repeated, and, sometimes, have the same sound. The difference between an averment and an innuendo, will appear from this illustration— when a paper has been ironically written of another, the indictment should set out the paper as it is, with an averment that it contains a latent and different, meaning from its literal purport, and then the alleged different meaning should be precisely set forth. An- innuendo, afterwards, may refer, in a running commentary, to the previously explained meaning, as often as it occurs in recital. As where one is called a white man, when the meaning was that he had colored blood in him. Here the averment would explain the meaning, and the innuendo would call the attention to the true meaning, when there was an occasion to mention it. For authority on these questions, I refer particularly to the full and satisfactory judgments in the cases of The King vs. Horne, and Van Vechtin vs. Hopkins, 5 J. R. 211.

If the necessary averments had been made as to the character of the paper before us — presenting questions, pro-perlyrnade, for the’decision of the jury, I will not undertake to say that such a paper was' not libellous, and that there was not sufficient evidence to support the charge.

The essential ingredient of a libel is, that it should be a malicious publication; and where the obvious design and tendency of such a publication is to bring the subject of it into contempt and ridicule, it will, nevertheless, be a libel, although it imputes no crime liable to be punished with infamy. The latter might be more aggravated and heinous, and have a more probable tendency to lead to a breach of the peace. But the former would be referred to the same general character of the offence. The effect of a libellous publication might be produced by an insidious and malignant pun — exposing the faults of an individual in a contemptible point of view, as well as by scurrilous abuse, in which the most offensive epithets are used. As to what is or is not a libel, it cannot be indicated by certain. description or uniform definition. I mean such a libel as would be the subject of a public prosecution. It is probable that we would not have interfered with the verdict in this case, if it had been rendered on a sufficient indictment. But as it is, we cannot suffer the conviction to stand. The motion to arrest the judgment is granted.

RichardsON, O’Neall, Evans and Wardlaw, JJ, concurred. Frost, J. dissented.  