Commonwealth v. Canter

Pierce, J. The defendant was indicted for criminal libel on December 10, 1928; he pleaded "not guilty”; he was tried by a jury and on May 27,1929, was found "guilty.” During the trial his counsel made several offers of proof, which were excluded subject to the defendant’s exceptions. At the close of all the evidence the defendant presented a motion to direct a verdict in his favor; the motion was denied and an exception saved. The defendant then requested certain rulings, which had been seasonably filed; subject to the defendant’s exceptions the presiding judge refused to grant requests 3, 4, 6, 7, A, B, D and E. At the close of the charge the defendant excepted to certain portions thereof. The case comes before this court on the foregoing exceptions, which are argued generally on the defendant’s brief. At the close of the evidence the judge, without objection by the Commonwealth or the defendant, instructed the jury "that people knew that Sacco and Vanzetti had been tried and had been executed ... in accordance with the forms of the law,” at the time the alleged libel was published. It further appeared without question that the case of Sacco and Vanzetti had been brought several times before this court; that they had applied in the year 1927 to Governor Fuller for pardon; that the application was denied by him and that they were duly executed by the warden of the State prison on August 23, 1927. It appears from the record, and is not disputed by the defendant, that about two o’clock on the afternoon of November 3, 1928, the defendant marched at the head of about twenty-five persons in single line in front of the State House on the State House side of Beacon Street for seven or eight minutes; that he carried a placard bearing the words [371] “Fuller — Murderer of Sacco and Vanzetti”; that there were people on the same side of the street watching the procession and about fifty or seventy-five people across the street on the side of the Common. Aside from sauntering and loitering there was no breach of the peace and no disorder. At the trial the defendant admitted that the placard carried by him referred to Alvan T. Fuller, then Governor of the Commonwealth of Massachusetts, and that “Sacco” and “Vanzetti” mentioned on the placard were Nicola Sacco and Bartolomeo Vanzetti who had been executed for the crime of murder in the Commonwealth. The defendant, while under arrest at the station house, in reply to the question “what the idea was of parading up and down before the State House carrying the sign,” said: “because these men Sacco and Vanzetti had been executed illegally and we think Governor Fuller is the man who is to blame for the carrying out of the execution.” The words, “Fuller — Murderer of Sacco and Vanzetti,” taken in their usual, natural and popular sense and without forced construction, import a charge of the most heinous crime known to the law — wilful murder — and are libellous per se. Giving to the words their primary meaning the publication of them was well calculated to injure the reputation of Governor Fuller, to degrade him in society, to lower him in the confidence of the community, and to bring him into public hatred and contempt. The defendant, not denying the publication by him of the words displayed on the placard or the falsity of them in so far as they import wilful murder, offered to prove that the police officers and everybody else present on the occasion of his arrest would testify that they understood the words used were used not in the sense that Governor Fuller had been guilty of murder as set forth in the indictment, but that he was morally responsible for the deaths of Sacco and Vanzetti, and contended that the question whether such was the fact was purely a question of fact for the jury. Based upon the presumed common knowledge that Sacco and Vanzetti were executed by the Commonwealth of Massachusetts more than a year prior to the parade of the defendant and others with the placard, the defendant [372] contends that nobody could take the words published to mean as stated in the indictment that Governor Fuller had been guilty of murder with malice aforethought. Disregarding as surplusage the innuendo of the indictment, wherein the word “Murderer” as printed on the placard is defined as “meaning one who slays or kills with deliberately premeditated malice aforethought, and meaning that the said Alvan T. Fuller is guilty of the crime of murder,” Commonwealth v. Snelling, 15 Pick. 321, 335, Commonwealth v. Szliakys, 254 Mass. 424, it is plain the words of the placard when published were not susceptible of meaning to the world that Governor Fuller was not guilty of murder as a crime but was morally responsible for the deaths of Sacco and Yanzetti. Thomas v. Blasdale, 147 Mass. 438. It is not sufficient for a defendant to show by argument that words in form libellous were not intended to be such in fact, where the words published are not ambiguous and have a meaning that is perfectly clear and well understood by everybody. There was no error in the refusal to direct a verdict for the defendant, in the refusal to receive the testimony offered to prove that the words were used to mean only that Governor Fuller was morally responsible for the deaths of Sacco and Yanzetti, in the refusal to receive the testimony offered to prove the truth of the publication assumed to have the meaning ascribed to the words by the defendant, in the denial of the requests for rulings to which exception was taken, in the exception taken to the charge, or in any of the exceptions which have been argued. Exceptions overruled.