Commonwealth v. Wardwell

Colburn, J. The motion to quash was rightly overruled. The indictment alleges a libel upon Mr. Sprague in his private capacity, and a large part of the publication obviously relates to him in that capacity. A person cannot be untruthful, profane, or a libertine in his official capacity. These are attributes of his moral character as a man, not as an officer, though they may render him unfit to hold the office. The judge was right in ruling that the first, second, fifth, sixth, seventh, and ninth charges in the publication relate to Mr. Sprague in his private capacity. The defendant contends that the publication was privileged, for the reason that Mr. Sprague held an elective office, and had not disclaimed his intention to be a candidate for re election; that he might be considered to be such a candidate, if he did not disclaim it; that, in becoming a candidate, he must be considered as putting his character in issue, so far as it might affect his fitness and qualification for the office; that it was the duty and privilege of a voter publicly to criticise and condemn his character or conduct, and to publish any statement of facts within his knowledge or belief which tended to show his qualifications for the office; that it was only necessary that they should be published to the voters of the county in good faith, and without malice, to render them prima facie privileged communications; and that, for this reason, the first, second, third, and fifth requests for rulings should have been granted. Though we might not be disposed to dissent from the defendant’s claim, if the occasion were such as to render the publication privileged, we are of opinion that, in the case before us, no such occasion is shown. Mr. Sprague held an office of three years’ tenure; an election would not occur for more than a year; he had neither declared nor disclaimed his intention to be a candidate for reelection. So far as appears, the question of an election was in no way being agitated, and it would be carrying the doctrine of privilege to an unwarranted extent to hold, as we are asked to do by the defendant, that Mr. Sprague was presumably a candidate for reelection, and that the charges made against his private character, affecting his qualifications for the office, as set forth in the indictment, were made upon a privileged occasion, and were prima facie privileged. [169] When a person is in fact before the public as a candidate for an office, and especially during the usual canvass which precedes an election, we have no doubt that much latitude should be allowed in publishing, for the information of voters, charges affecting the fitness of the candidate for the office, on account of moral character, and in holding the occasion to be such as to render the publication prima facie privileged. But to hold that every person holding an elective office, from the Governor of the Commonwealth to . a constable, as soon as he enters upon the duties of his office, if he does not disclaim being a candidate for reelection, is subject to have his moral character assailed in any and every respect which would disqualify him for the office he holds, under the claim that it is upon a privileged occasion, would not tend to promote purity of elections, or the election to office of persons of the requisite qualifications, but would tend to induce all persons having self-respect, and a desire to lead a life of ordinary tranquillity and freedom from reproach, to decline to hold, or be a candidate for, an elective office. It is true that the contention of the defendant, that Mr. Sprague might be considered a candidate for reelection, is supported by a dictum of Chief Justice Parsons in Commonwealth v. Clap, 4 Mass. 168, 169; but, notwithstanding the great respect which even a dictum of that eminent judge should receive, we are unable to assent to the defendant’s contention. The defendant’s first request for a ruling, as matter of law, that the occasion of the publication was such as to make it privileged, was rightly refused, and from this the refusal of the second and third requests necessarily followed. In determining the question whether the occasion was such as to make the publication privileged, it was unimportant, under the circumstances of this case, for the court to assume that it was made in good faith. The good faith of the defendant in making the publication had no tendency to show that the occasion was one upon which it might be made under the protection of privilege. If it had been determined that the occasion was such as to render a publication privileged, then, in determining whether this was a privileged publication, the court must have assumed that it was made in good faith, leaving the question of malice to the jury. But the court, having rightly determined that the occasion was [170] not such as to render the publication privileged, was not required to make any assumption as to the good faith of the defendant. For these reasons, we think the fifth request for rulings was also properly refused. If it is true, as the defendant contends, that the granting of the fourth request for a ruling, and the refusal of the other requests, were contradictory, as we have held that the refusal was right, the contradiction was in the defendant’s favor, and he has no ground for complaint. Exceptions overruled.