Opinion
SEPTEMBER TERM, 1849.
The truth of the charge is a good defence in an action for a Libel. The plaintiff having been engaged in selling spirituous liquors in violation of law, and having been convicted of the offence, was termed, in a printed circular, a "convicted felon;" the Court charged that if these terms, taken in connection with the context and the evidence in the cause, would be understood by the public to mean only an offender against the license law, they were no cause of action.
THIS is an action for libel. The plaintiff grounds his action mainly upon the following expressions, published by the defendant in a printed circular, viz: "What do you think of a man who, charged with selling liquor without a license, would sit down beside the witness stand, awaiting an acquittal at the hands of a man who he knew was committing downright perjury at his instigation, to shield himself from the deserved penalty of the law." And also: "Besides you are a legally convicted felon, and uttering the truth under such circumstances, as has been twice decided by distinguished Judges of other States, I feel to be sufficient justification." The circular was principally aimed against the plaintiff as a trafficker in liquor without license, and was throughout extremely caustic and virulent.
Evidence was put in to show that the defendant was actuated by malicious motives in publishing the circular; that he had previously published a writing against the plaintiff, for which he had been indicted; that he had assiduously circulated the present writing, and had been, before and since its publication, uniformly abusive and violent in his language in regard to the plaintiff.
The defendant put in proof that the plaintiff was, at the time his circular was published, engaged in trafficking in liquors, and that he had been convicted in a trial upon the charge of violating the license law. A statement of the Attorney General was read, that during the trial of one of the indictments against Mr. Perry, for violating the license law, his bar-keeper had sworn, in the presence of Perry, that he had never known any liquor to be sold on his premises; that Perry showed evident signs of excitement and dissent at the testimony; and, afterwards, when the Attorney General was proceeding to indict the witness, had come to him, stating that the testimony was untrue, and making such explanations, that he did not deem it advisable to press the prosecution.
Hazard Jenckes, for the plaintiff.
Bradley, for the defendant.
The matters complained of in the declarations as libellous may be divided into two classes. In the one, the plaintiff is charged with the crime of subornation of perjury, and is also called a convicted felon; in the other, with matters and things which, though not amounting to crime, yet tend, as is contended by his counsel, to disgrace and degrade him in the public estimation. To charge a man with crime is libellous; and so it is to charge him with that which, though not criminal, yet degrades him in the eyes of the public, and exposes him to contempt. The defence to the charge of subornation of perjury is, that it is substantially true. If this be proved it is a good defence. The same defence is made to the charge of being a legally convicted felon. The defendant has offered evidence, that the plaintiff has been convicted of selling spirituous liquors in violation to the license law, and contends that it is as a convicted offender under the license law, that the terms "convicted felon" are applied to him. At common law, the term felony comprehends a large class of high crimes, as well as those of a less atrocious character. A felony at common law always drew after it a forfeiture of goods and chattels. A violation of the license law is a misdemeanor. If the jury think the term "convicted felon" in the publication, taken in connection with the context and with the evidence in the cause, would be understood by the public to mean only an offender against the license law, then the plaintiff has no cause of action for this part of the publication. If, on the other hand, the jury think the terms are to be understood in the strictly legal and technical sense, then the defence of this part of the publication fails. With regard to that part of the publication which is complained of as tending to degrade the plaintiff, and expose him to the contempt of the community, if the jury find that this is said of the plaintiff as seller of spirituous liquors in violation of the license law, then the plaintiff has no cause to complain. It is no matter how severe and unreasonable the strictures may be upon his conduct and motives, if they apply to him as a man engaged in an illegal traffic. A man, whose business is in violation of law, cannot apply to the law to protect him from strictures on his illegal conduct. But if the jury think this part of the publication applies to the plaintiff as a man and not as a dealer in spirituous liquors, then the defence to this part of the publication fails.
If the jury think the defendant has made out his defence to all the matters which have been before stated, then he is entitled to a verdict. But if otherwise, then comes the question of damages, and the jury will be justified to give such damages as they think proper. It is entirely in their discretion.
Verdict for the plaintiff.