
    Melton vs. The State.
    1. Tiie record shewed that the circuit court was held at Lawrenceburg; that the jurors summoned were good and lawful men of Lawrence county, and thai the grand jury were sworn and charged to enquire for the body of the county of Lawrence: Held, that it sufficiently appeared that the court was held for Lawrence county, without an express allegation to that effect.
    2. Any malicious publication expressed in printing or writing, or by pictures or signs? tending to injure the character of an individual, or diminish his reputation, is a libel. 2 Leigh’s N. P. 136: 2 Hump. Rep. 512.
    3. Where the defendant was indicted for a libel, and the bill of exceptions which he had taken to the opinion of the court, did not set out the evidence, the court was bound to presume that the evidence supported the verdict, and that there was no variance between the libel set out in the indictment and that produced in evidence in the court below.
    4. In an indictment for a libel, it is not necessary that the charge in the indictment should be more specific than the libellous publication.
    5. The defendant sent to the prosecutor, a letter charging him with perjury, forgery, &c. &c. The defendant pleaded not guilty. The court charged the jury that if the defendant (the plaintiff having proved the malicious publication) failed in proving any one of the charges in his letter, the jury should return a general verdict of guilty. There was no error in this charge. The character of the libeled party and the fact that a libellous publication contained some charges which were sustained, were proper to be considered by the court or the jury in mitigation of the fine imposed.
    The grand jury of Lawrence county, indicted Melton for publishing a libel against McLaren and wife.
    The indictment charges that Melton unlawfully, wickedly and maliciously intending to injure, vilify, &c., &c., prejudice one George W. McLaren, and one S. McLaren the wife of said G. W. McLaren, and to injure their good name &c. &c., and bring them into contempt, &c., on the 7th day of December, 1842, in the county of Lawrence, did unlawfully, maliciously and wickedly write and publish a certain false and malicious libel in the form of a letter, directed to one George W. McLaren, under the style of G. W., which contained divers, false, scandalous and malicious matters of and concerning said G. W. McLaren and his wife S. McLaren, according to the tenor and effect following, “December 7,1842. Little G. W. The people are talking very ugly about you. They say you are charged with forgery (thereby intending to accuse the said G. W. Mc-Laren with having committed forgery) and some other things fully as bad (meaning to charge said George W. McLaren with some other crimes. They think you have caused two of your connexion to perjure themselves, (thereby charging said G. W. McLaren with subornation of perjury. They say you do not act consistently in your official function, (then and there intending to charge said G. W. McLaren with negligence and corruption in his office as a justice of the peace for said county.) They say you stand cuckolding first rate, (then and there intending to charge and accuse Sophia McLaren, the wife of George W. McLaren with the crime of adultery.) They say they cannot believe you on your oath; that you are the most corrupt man they ever saw; that you are too fond of law; that you slander your neighbors; I can prove you a liar; recollect all your low cunning rascality and try to do better, or be assured the heavy vengeance of Almighty God awaits you. W. X. Y. Z. To the great damage of said G. W. McLaren and Sophia, his wife,” &c. &c. The defendant pleaded not guilty, and the case was submitted to a jury at the October term, 1842, Tot-ten, judge, presiding.
    The record does not set forth what was proved by the testimony submitted to the jury. The judge charged (amongst other things not excepted to,) that the act of 1805, N. & G. on the subject of libel made no alteration in the law as to the pi'oof of publication of the libel, that whatever would have been sufficient proof of publication before that act would still be sufficient; that on the examination of the proof introduced to justify by shewing the truth of the charges contained in the al-ledged libel, the jury would consider the proof in connection with the particular crime it is intended to establish; that if it sustained the charge, they would regard the defendant as to that not guilty; that if the proof introduced in justification satisfied them of the truth of the several offences charged on the plaintiff, they ought to find a verdict of not guilty; that if the proof offered by defendant to sustain any one of the libellous charges contained in the indictment should be insufficient, the State should have a verdict, though the other charges had been fully sustained by the proofs.
    The jury rendered a general verdict of guilty. The defendant moved the court for a new trial, the motion was overruled; he also moved the court in arrest of judgment; this motion was also overruled and the defendant fined fifty dollars. He appealed in error.
    
      N. S. Brown, for the plaintiff in error.
    1. The record in this cause is deemed defective, as it does not set out the letter, upon which the charge of libel against the defendant is predicated. This it should have done, that it might appear, whether the writing imputed to the defendant, was libellous or not. The indictment, professes to recite the letter, in its tenor and effect, but there is no test of the truth and accuracy of that recital, presented by the record itself. There is nothing to determine whether there is a variance or not, and any material variance in setting out the libel is fatal — see (Trim- Law, 3 vol. page 875: 1 Camp. 352. The omission of the letter in the record, was good matter in arrest of judgment, as it formed the basis of the prosecution, and therefore, so far as the point of variance is concerned, this court cannot determine whether it be available or not — this court should have the whole case so far as is material to the points in dispute.
    2. The indictment is defective for the want of sufficient averments. It does not shew, the precise charges imputed to the defendant. It should have pointed out, with clearness and certainty, what it was the defendant had to meet and answer in order to his defence. However such an indictment might have been deemed at common law, it is insisted, that by the operation of our act of 1805, ch. 6, sec. 2, “allowing the truth of the matter charged, tobe^given in evidence, by way of justification;” it should show the precise charges the defendant was called upon to justify. At common law, it was sufficient if the defendant published the libel — the proof of this fact left him no means of exculpation. No matter whether the libel, contained in itself distinct and direct charges or dealt in insinuation, or in general invective, it was left for the jury to determine whether, (in case of criminal prosecution) its tendency was to produce a breach of the peace and the conviction of the defendant followed of course, without reference to the truth or falsehood' of the libel. But our act of 1805 retains the spirit of our free institutions, places the defendant on different and high-cr ground, and enlarges his rights and privileges, by permitting the truth of the matter charged in the indictment, to be given in evidence, and gives it the force of a full vindication. Is not the necessity then, of making the charges raised on the libel, specific, most obvious? If it be a charge of perjury, let the indictment show before what tribunal, on what issue, it was committed, and that it was material? If forgery, upon what land of instrument? If adultery, with whom was it committed? In a word, let the defendant be able to see from the face of the indictment, the precise charges he has to verify. A contrary rule must necessarily presume, that the defendant did indeed- publish the libel, and that before any proof is received to establish the fact; and all this, in the face of the usual presumption of innocence, until the contrary appears. Why is it, that an indictment for perjury, must show the tribunal, the trial and the materiality of the evidence given? Why, but to show the defendant what it is, he has to meet in his de-fence? If an indictment were to charge A B, in general terms, with perjury, without any averments and without an assignment, it might be quashed upon motion, or the same defects would be good matter in arrest of judgment. No reason can be perceived why the same strictness in pleading, should not be enforced in the one case, as in the other.
    Let it be remembered, that the matters in justification are by the statute, allowed to come in under a negative plea — the plea of not guilty, which imposes on the defendant less burden than an affirmative defence. Besides all this, the vtery language of the statute seems to imply something more than a mere transcript of the libel in the body of the indictment. The language of it is, that “in cases of indictments, for libels, the person or persons charged, may give the truth of the matter charged in the indictment in evidence” &c. By this it is inferred, that the indictment must raise the specific charges, which are intended to be drawn from the libel, and prefer them in a distinct, tangible shape. The statute further says, “that the defendant shall have every advantage thereof, that he now can have under any plea of justification in actions for libels.” And what are the advantages, which the defendant could have, in an action for a libel? One of them is, that the declaration must set forth by specific averments and by innuendoes, the charges relied upon, to enable the defendant to make his defence; upon this point see 1 Chitty’s Plead, page 428 to 445 inclusive. If the rights of defence in an indictment for libel, were intended by the statute to be made the same as in an action, it can only be by enforcing the same strictness in pleading, arid placing the defendant on precisely the same ground.
    3. The court erfed, in' riot granting a new trial on the ground of misdirection to the jury in the charge. The jury were told in substance, that “unless they found all the charges set out in the letter to -be true, they must find a general verdict of guilty.” It is insisted, that the jury should have been directed, “to find for the defendant, so far as the charges were true, and against-him so far as they were untrue, so as to give the defendant the full benefit of the sense of the jury; not by way of acquittal, but in mitigation of damages. In 1st Wendel N. Y. Rep, 451, it is decided, that a partial verification of the charges in an action for libel, shall be a circumstance in mitigation of damages. See also 4th Conn, Rep. 17. If then a partial verification, is-a circumstance in mitigation, (as it must be in an indictment as well ás a civil action,) there is no other mode by which the benefit o-f it could be attained by the defendant, except it be by a special finding, as it belongs peculiarly to the court in State prosecutions to assess the fine. In this case, under the charge of the court, the jury found a general verdict of guilty,- which showed of course, that the defendant was guilty of all the charges in the indictment, (a libeller by wholesale,) and left him no- circumstances of mitigation. The jury may have really found'■him guilty of only one of the various charges, and not guilty upon the others; which would have placed the defendant in amuch more favorable attitude before the court, and subjected him to much less punishment. For all these reasons it is insisted, that the judgment below should be reversed, and the defendant discharged, or if not discharged, a new trial awarded.
    
      Attorney General, for the State,-
    
      
      Shields, for the plaintiff in error.
   GreeN, J.

delivered the opinion of the court.

1. The objections which are taken to the caption of the indictment in this case, are all answered by reference to Long’s case, (1. Hump. Rep. 386,) where the subject is reviewed, and the principles decided in McClure’s case, (1 Yer. Rep. 206,) are sanctioned and reaffirmed.

2. The objection that the record does not state that the court was held for Lawrence county, in express terms, does not vitiate the proceedings. The caption states that the circuit court was “held at Lawrenceburg, on the second Monday in June, 1842, present the honorable Edmund Dillahunty, one of the judges of the circuit courts.” A circuit court, could not by law, be held at Lawrenceburg, for any other purpose than for the trial of cases in Lawrence county. Besides, the record states that the jurors summoned were good and lawful men of Lawrence county, and that the grand jurors “were elected, em-pannelled, sworn and charged to enquire for the body of the county of Lawrence.”

3. The objection that the record does not set out the letter, so that it may be seen, whether there is a variance between that and the libel charged in the indictment, constitutes no ground of error. The defendant’s counsel, did not choose to set out the evidence'in their bill of exceptions. They might have done so, and by this means they would have made the letter, which was offered in evidence, part of the record. It would thus have been seen, whether there was a variance between the letter offered in evidence, and the one, the tenor of which, is set out in the indictment as containing the libel. But as the bill of exceptions does hot contain the evidence in the cause, we are bound to presume that it was all competent and sufficient to support the verdict.

4. It is next objected, that the indictment is not sufficiently specific in charging the facts in the letter, which constitute the libel, so that the defendant might know the particular facts in his publication, which were alledged to be libelous, the truth of which, under the act of 1805, he might be prepared to prove. To this objection it may be answered, that the indictment recites the libelous publication, and consequently the charge in the indictment is as specific, as are the statements in the libelous publication.

“Any malicious publication, expressed in printing or writing, or by pictures or signs, tending to injure the character of an individual, or diminish his reputation, is a libel.” 2 Leigh’s, N. P. 1360; 2 Hump. Rep. 512.

It is absurd to say, that a man may publish of another, that he is a thief, or that he has committed perjury, and thus be guilty of a gross libel — and when he is indicted for it, to insist that the indictment should inform him what it was he meant the prosecutor had stolen, and when, where, and in what particular oath, he meant the prosecutor had committed peijury. If that were the law, the libeler could always escape punishment, for he might impute, in his publication, the worst crimes by general expressions — and the greater the falsehood, the more certainly would he escape — for the innocent man would be unable to imagine to what facts the defamation was intended to allude.

This indictment sets out the libelous publication; and the first enquiry before the jury was, whether it was published by the defendant? If that were proved, the defendant being the author of the accusations contained in the letter, would best know, to what particular facts he intended to point his accusation — and consequently might be prepared to prove all he had published. The advantage would all be on his side, for until his proof was heard, the prosecutor would not know, in many cases what facts he would be called^ upon to rebut and repel.

5. It is next insisted, that the court erred in telling the jury, in substance, that unless the defendant had proved, that all the libelous statements contained in the publication set out in the indictment were true, they should find a general verdict of guilty.

In this the court was clearly correct. If in the publication there was a single libelous statement which was false, the defendant was certainly guilty of publishing a libel — and it was not the less a libel, because it might be contained in the same publication, in which were contained various defamatory statements that were true. It is not like the cases cited, where the -charge is incapable of being separated. In such cases the jury may acquit as to part, and convict as to part. Not so here; the charge is indivisible. He was guilty of a libel, or he was not; and it makes no difference, whether one, or twenty libelous falsehoods were proved upon him, the verdict must be the same.

It is true, the character of the libeled party, and the amount of truth contained in the libel, would be considerations to which the jury would properly lookin mitigation of the fine, should they assess one; and if as in this case, they should think the offence, for these reasons, so far mitigated as to find a simple verdict of guilty, the court having heard all the proof, would be able to judge of the .circumstances of mitigation, or aggravation, as well upon a general finding, as if a special verdict had been rendered.

We think there is no error in the record and affirm the judgment.  