
    O’SHAUGHNESSY v. NEW YORK RECORDER CO.
    (Circuit Court, E. D. New York.
    November 30, 1893.)
    Libel — What Constitutes — CbukiiTy by Fomomman.
    A publication charging a police officer with treating a prisoner, making a desperate attempt ro escape, in a merciless manner, by striking him a crushing blow on the neck, felling him to the ground, and shortly causing his death, is actionable.
    At Law. Action by James O’ Shaughnessy against the New York Recorder Company for the publication of a libel. On demurrer to the complaint.
    Overruled.
    Charles J. Patterson, for plaintiff.
    Rochfort & Stayton, for defendant.
   WHEELER, District Judge.'

The publication alleged charges the plaintiff, a police officer, with treating a prisoner, making a desperate attempt to escape, in a merciless manner, by striking him a crushing blow on the neck, sinking him helpless to the ground, and from which he soon after died. The demurrer raises the question whether the publication is actionable, being made concerning the plaintiff preventing the escape of a rebellious prisoner, in the line of his duty. An officer having custody of even a rebellious prisoner, making even a desperate attempt to escape, has no right to make a murderous or merciless assault upon him) and a publication of so doing is a charge of gross misconduct in the line of duty, which would expose the officer to discipline; and of criminality, which would expose him to prosecution; and of brutality, which would tend to degrade him. That such a publication, if false, is libelous, is elementary. 3 Bl. Comm. 125; 4 Bl. Comm. 150. Demurrer overruled.  