Commonwealth v. Rovnianek

Opinion by Orlady, J., The appellant was convicted in the court below of publishing a malicious and defamatory libel against the prosecutor. ®n the trial it was admitted that the defendant was one of the owners and one of the proprietors of the tw® newspapers in which the libelous articles were made public, and, for the purpose of overcoming the legal presumption of malice and negligence which was established by the publication of the offending matters, the defendant offered to show that several days prior to the publication of either of the libels he was compelled to and did leave the state; that, before leaving his home, he gave specific instructions at the office to the persons in charge of the publication of each and both of said newspapers that during his absence nothing whatever should be published of or concerning the prosecutor; that during the period of time in which the [92] libels were published in the newspapers, he was not in the state and had no control or supervision over either of said newspapers •or their contents, although he continued to be a half owner of the said papers, and that he had no knowledge or information that the same were to be, or, that they had been published. The objection to the offers that they were incompetent and immaterial was sustained by the court and the jury was instructed, that, “ There has always been since the law of libel began, a rule in criminal libel, that the proprietor and publisher is responsible for what appears in his- paper whether he knew about it or not, whether he was there or not, and I take it, whether it was done in direct disobedience to his directions.” The rule in criminal libel at common law was alwaj's regarded .as exceptionally severe, but it did not reach the degree as stated by the learned trial judge. In R. v. Gutch, Moody & Malkin, 433, Lord Tenterden directed the jury to find the defendants .guilty, and justified the rule then held, on the ground that as “ it seemed to be conformable to principle and common sense; .surely a person who derives profit from, and who furnishes means for carrying on the concern, and entrusts the conduct of the publication to one whom he selects, and in whom he confides may be said to cause to be published what actually appears, and ought to be answerable, although you cannot show that he was individually concerned in the particular transaction. It would be exceedingly dangerous to hold otherwise, for then an irresponsible person might be put forward, and the person really producing the publication, and without whom it ■could not be published, might remain behind and escape altogether,” and yet, in a case against the same defendants, who were tried the folio wing day, on a similar charge, the same learned .jurist stated to the jury, “ I do not mean to say, nor ever did mean to say, that some possible case may not -occur in which the proprietor would be exempted, but generally speaking, he is answerable; ” and after a verdict of guilty, he discharged the •defendant who was found guilty on his own recognizance. The ■earlier cases in England and in this country held that mere absence from home and want of knowledge of the publication did not answer the presumption of malice and of negligence; the reason being that if proprietors or publishers could avoid responsibility by telling their foreman not to admit anything per [93] sonal in the columns, and then absent themselves while a libel, was being printed and circulated, they could easily make the-newspaper a vehicle for the distribution of the most atrocious, libels with perfect impunity, and this view has been held in many cases: Rex v. Walter, 3 Esp. N. P. Cases, 21; King v. Topham, 4 Term Rep. 126; Attorney General v. Siddons, 1 Cr. & J. 220; Dunn v. Hall, 1 Ind. 343; Smith v. Utley, 92 Wis. 133; Bruce v. Reed, 104 Pa. 408; Shepheard v. Whitaker, L. R. 10 C. P. 522; Perret v. New Orleans Times, 26 La. Ann. 170; Andres v. Wells, 7 Johnson (N. Y.), 261; Commonwealth v. Morgan, 107 Mass. 199; Lothrop v. Adams, 133 Mass. 471. Partners are the general agents of each other and of the firm within the scope of the business of the partnership. While-the proprietor of a newspaper may be liable in the civil and criminal courts for a libel published, without his knowledge, by the agent whom he has intrusted with the management of the newspaper, under authority of the above and other cases the-law is not so rigid as to justify the exclusion of the defendant’s-offers as they were made. It was deemed necessary in England to correct the law in this respect and the statute of 6 and 7 Vic. C. 96, section 7, was enacted to permit the defendant to-show that the publication was made without his authority, consent, or knowledge, and that it did not arise from want of due care and caution, but, even in England, without the aid of .this-statute, judges have declined to apply the rule in view of special defenses which fully negatived the idea of want of care- and inferred malice in the publication: Rex v. Almon, 5 Burr. 2686; Reg. v. Holbrook, 13 Cox C. C. 650; 14 Cox. C. C. 185. In Odgers on Libel and Slander, sec. 412, it is stated that, the inclination of our courts has of late years been not to press the doctrine of implied authority so far as was done in the older cases, and it appears to be conceded that the law is applied in its severity in cases of implied negligence or implied malice, only, as the learned text writer declares; where the instructions-are express, there can be no difficulty. A master or principal is criminally liable for any libei published by his servant or agent, even though he had no knowledge of it, if his servant was acting in pursuance of general orders, but when the orders are special and directed to the-prohibition of any publication affecting the particular prose [94] ■eutor the rule is and should be different. If the wrongful act is committed by the authority of the master either expressly conferred or fairly implied from the nature of the employment and the duties thereby imposed, his absence from the place of publication and his want of knowledge of it are not a sufficient defense to rebut the legal presumption. But the offers in this case, if supported by credible evidence of the good faith of the instructions given to those who had sole control and supervision of the newspapers, taken in connection with his absence from home and want of knowledge of the publication and intention to publish would tend to make as complete a defense — short of a denial of every relation to the newspaper — as a proprietor could make. A proprietor cannot be expected to suspend the publication of his newspaper during his absence from home, and there is a marked difference in a case where the employer gives the agent general instructions to properly conduct the business, but leaves its general management to the discretion of the agent, from a case where the employer gives specific directions to not publish anything at all •of, or concerning, a particular person. Malice and negligence •are in law presumed from a defamatory publication; when the defense is based on their absence the burden is on the •defendant. Whether, upon all the evidence, the fact that the publication was not maliciously or negligently made is established to the satisfaction of the jury, is for the jury to •determine: Com. v. Swallow, 8 Pa. Superior Ct. 539. The presumption thus raised is a rebuttable one, and like every •other presumption it should yield to proof which satisfactorily negatives and overcomes it. If this were not so, every possible precaution to prevent publishing a libel against a particular person, accompanied by a total absence of direct or inferred malice, and an honest supervision of the business of the proprietor, would be nugatory and could be designedly thwarted by an employee’s surreptitious publication who acted in defiance of precise instructions of the employer, or by a publication effected through the corrupt combination of enemies. The evidence shows that the defendant was one of several owners and publishers of the newspapers. The indictment is .against him solely, and the defense applies personally to him. Had the charge been against all the persons who were associ [95] ated as proprietors and publishers, the evidence which should relieve one, would doubtless assure the conviction of the guilty party or parties. The first, second and third assignments of error are sustained ; the evidence covered by them should have been received and submitted to the jury under proper instructions. The record shows that while the indictment was found by the _grand jury without a proper indorsement of the name of a prosecutor, yet, upon a hearing of a motion to quash, the name ■of a responsible prosecutor, and “ added by order of the court ” were afterwards indorsed on the indictment. It is further shown that the indictment was returned to the court with the indorsement, “True Bill, George Loozen, Foreman,” and under the designation of “ Test. pro. respub.” the names of five persons, including that of the prosecutor, were added. While there is not an affirmative declaration on the indictment that these witnesses were called by the grand jury and duly sworn by one of its number, the indorsement on the indictment by ■the foreman, its return to the court, and the addition of the prosecutor’s name by order of the court are, under the statute and the practice in this state, sufficient evidence of the finding of the indictment by the grand jury on the testimony of witnesses whose names were indorsed by the district attorney, and who were duly sworn. The fifth and sixth assignments of error are sustained. The judgment is reversed and a venire facias de novo awarded.