Sharff v. Commonwealth

Txxghman C. J. The counsel for the Commonwealth have considered the entry of the verdict as a clerical error, and as such, subject to amendment. There is'no doubt but a clerical error may be amended, even in a criminal case. But there does not appear to be any clerical error in this instance. If there be an error, it is not of the cleric, but of the jury. We must suppose that the verdict was entered as it was given. A bill of scandal is a singular expression, A good many of the jury were Germans; perhaps it is a translation from the German to the English language. The counsel for the defendant say, that according to the German understanding it means a scandalous report. For my own part, I cannot affix any definite meaning to it, and therefore I cannot say, that it is an of-fence of the nature of that, which is charged in the indictment. But that is not the only objection to this verdict. If it had said, guilty of the bill of scandal, with which the defendant stands charged, or even guilty of the bill of scandal, without more,'we Should have been certain that the jury referred to the indictment; and then perhaps it might hav«? been faii'ly construed “ guilty of the offence chax-ged in the “ indictment.” But the words are guilty of a bill of scandal. A bill, is very different from the bill. Grammatical niceties should not be resorted to without necessity. But it would be-extending liberality to an unwarrantable length, to confound, the articles a and the. The most unlettered persons understand that a is indefinite, but the refers to a certain object. When the jury say, that the defendant is guilty of writing xt bill of scandal, I am not assured that they mean the scandalous matter mentioned in the indictment; and I therefore cannot say, that they have found him guilty of the offence, for which he was indicted. This verdict ought not to have been received. The court should have informed the jury of .its [517] Imperfections, and have desired them to express their meaning plainly. Í am of opinion that, the judgment is erroneous, because it does not appear on the record, that the defendant was found guilty of the offence charged in the indictment. Yeates J. was of the same opinion. Brackenridge J. The word libel is a translation of the word libellus, and means a little book, or paper. But it must be defamatory to make it a libel in the legal acceptation of the-term. It must'also be malicious. It is so defined by the commentator. 4 Blac. 149. “ Malicious defamation of any person, made public by writing, printing, signs or pictures.” Malice then is a necessary ingredient to constitute a libel. Malice must be laid in the indictment, otherwise there is no charge, to which the defendant would be bound to answer; no,charge on the face of the indictment, which would warrant a sentence. I admit this is not the doctrine of lord Mansfield in the dase of The King v. Woodfall, 5 Burr. 2666. He asserts “ that whether the paper was a libel, was a question of laxe “ upon the face of the record;” and he adds what he thinks proves it, “ that after a conviction, a defendant may “ move in arrest of judgment, if the paper is not a libel.” Doubtless, after conviction, the defendant may allege in arrest of judgment, that taking the fact as found by the jury, or implied in their finding, viz. that the writing was published by the defendant, it did not amount to a libel. For maliciously publishing, is a fact which must go to constitute the offence, and which must be found by the jury. Fie goes on to say “ no proof of express malice ever was required, and in “ most cases is impossible to be given.” That is all true; and the malice may be inferred from the writing. But it is the jury that must infer it. It is a fact that must be found by the jury; for maliciously publishing must be charged, and it is the whole of this fact that must be found. But it is fallacious to infer from this, that without such finding he could infertile guilt of libelling, Lord Mansfield laid down the inference of malice to be matter of law; but the doctrine was exposed by Junius. In his letter to lord Mansfield of [518] Nov. 14th 1770, Junius observes: “The doctrine ymu have “ constantly delivered in cases of libel, is another .powerful evidence of a settled plan to contract the legal power “ pf juries, and to draw questions inseparable from fact, with- “ in the arbitrium. of the court. In criminal prosecutions the “ malice of the design is confessedly as much the subject of “ consideration to a jury, as the certainty of the fact. Why “ force twelve men to pronounce a fellow subject a guilty “ man, when almost at the same moment you forbid their “inquiring into the only circumstance, which in the eye of “ law and reason constitutes guilt, the malignity or innocence “ of his intentions? Your charge to the jury in the pro- “ secution against Woodfall contradicts the highest legal “ authorities, as well as the plainest dictates of reason. It “ began as usual with assuring them that they had nothing “ to do with the law; that they were to find the bare fact, “ and not concern themselves about the legal inferences “ drawn from it; that the jury were not competent judges “of the law, and that it did not fall within their jurisdic- “ tion; and that as to them, the malice or innocence of the “ defendant’s intention, would be a question coram non ju- “ dice. But with the simple information of common sense, I “ assert that if a jury, or any other court of judicature (for “jurors are judges) have no right to enter into a cause or “ question of law, it signifies nothing whether their decision “ be or be not according to law. Their decision is in itself a “ mere nullity; the parties are not bound to submit to it; and “ if the jury run any risk of punishment, it is not for pro- “ nouncing a corrupt or illegal verdict, but for the illegality “ of meddling with a point on which they have no legal au- “ thority to decide.” These observations bear upon the point before us. For if malice is a fact which must be found by the jury, the first question here will be, has it been fouud? It is charged in the indictment, and the plea goes to it, not guilty. The finding guilty goes to the plea, and had nothing else been added, I admit that the words of reference in manner and form would have been included, and-would, have embraced the fact of maliciously publishing. But the generality of the term guilty is restrained by the special finding, guilty [519] of a bill of scandal, and we are reduced to the necessity of inquiring- what a bill of scandal is, of which the defendant is found guilty. Billa vera is an indorsement which the grand jury used to make upon the indictment, sent up to them, and now in English, a true bill. As Black. 305. A bill of scandal must therefore mean an indictment of scandal. Scandal, and slander, mean the same, in the language of the law. Scandalous and slanderous words; scandalous words that may subject a man to the penalties of the law; scandalum magnatwn, or words spoken in derogation of a peer, a judge, 'or other great officer of the realm. 3 Black. 122, 3. Esclandre, is the word which is used in the statute 3 Ed. 1. c. 34, and which in the statute book is translated slander. 2 Rich. 2. c. 5. I take it to be the same thing therefore as if the finding of the jury had been, guilty of an indictment of slander. Butwhetherthe finding guilty of an indictment, will carry with it the finding guilty of the defamatory writing as laid in the indictment, that is the publishing maliciously, is not so conclusively certain, as not to require some astutia to make out, which I am not satisfied with using in a criminal case. And unless I could make out malice to be included, I could not say that the guilt was found. For the guilt of publishing does not include maliciously publishing. A libel might be innocently published by a man who could not read, and not knowing what it was; as if imposed upon him for an old ballad. And though he might give this in evidence, in which case the jury ought not to find guilt, yet there is a fallacy of lord Mansfield iu the application of this principle in Wood-fall's case. For though where the act is unlawful, the law implies a criminal intent, yet the intent is matter of fact, and unless on demurrer to evidence, as in other cases, it is left to the court, it is the jury only that can infer it. •. But' supposing guilty in manner and form as laid in the indictment, to be included in the finding in this case,the pinch remains still in the term, a bill of scandal. It is not the bill. The is an article which particularizes the subject of which we speak. A, an, one, any one, are all words of the same family. It is as if said, one bill of scandal. Horne Tooke, Epea Pteroenta 324. So that the term a, does not attach necessarily to the bill or indictment to be tried. It is impossi [520] ble not to have a strong inclination of mind to believe that the jury meant the indictment tried; but there is a possibility, that they might from their own knowledge have some evidence of, and mightjmean, another bill; and if such laxity in the finding was admitted, it might endanger the certainty of convictions, and let in a license to jurors to wander from the bill before them, and to think of other offences of a like nature, of which they might believe the defendant guilty. As in my knowledge in the western parts of Virginia, bordering on Pennsylvania, where, on an indictment for stealing sheep, they found the defendant guilty, because in their own knowledge, or from some evidence before them, he had stolen wool. They had thought that it all came to the same thing. Let the thing stolen be what it might be, he was a thief, and ought to be found guilty. On this ground therefore I think the judgment must be reversed. Judgment reversed.