State v. Marlier

Ellison, J. This is a prosecution by indictment for slander, under section 3868, Revised Statutes, 1889. Three defendants are joined in one indictment, father, mother and son. They are charged to have “then and there” given utterance to the slanderous and defamatory words. They -were convicted. Objection is made to the joinder. It has been held that the offense here charged is in its nature separate, and cannot be committed jointly. The better doctrine is, however, to the contrary. If they all give voice to the same utterance at the same time, or if all concur in the utterance of one, they may be proceeded against jointly. 2 Bishop’s Crim. Proc., sec. 811; 1 Bishop’s Crim. Proc., secs. 467, 170; 2 Bishop’s Crim. Law, sec. 948.’ In the case at bar [235] it appears that the defendants and several others met by invitation at the house of one of the number. Among those present was Mary Anneton, an unmarried female, whom defendants are alleged to have accused of being guilty of fornication. It seems to have been understood that ■ each of the party, in turn, should sing ’ a song. The song sung by Griiilliome, Jr., appears to have been made up, in part, of slanderous reflections upon Mary, who, together with others of the party, resented the imputations by objecting to the song. A quarrel was thus brought about in which the words alleged in the indictment were used by the defendants. It does not appear clearly whether a part of the words were uttered in the song. But the song as rendered by Gluilliome, Jr., was undoubtedly, at the time of its utterance, approved by his father and mother acting in concert with him, though they do not appear to have actually joined in the singing. And the slanderous words following were uttered in concert, are expressly concurred in by each, as found by the jury under proper instructions in this respect. There is a case reported in 2 Burrows, 980, where several were indicted and convicted for singing-a song in the public street at the door of Jane Cook. The following verse was, by proper averment, shown to refer to her : “ There are two people in Cheltenham town ; The one a lusty spark ; They both do take delight in game ; Each one doth keep a park. In one, there is a buck ; in the other, there’s a doe, And if yon can but favor get, a hunting you may go ; But if that she is going proud, and. like to be at rut, They turn her into a neighbor’s park, and there to take the buck ; And when that he has done his best, and this fine doe is cloy’d, Then up she goes to London town, her young one for to hide ; And when she had been there awhile, if that you will but mind, Then out she cometh from that park and leaves her fawn behind, But yet awhile in town must stop, till all things safe and sound, Then home she comes to her own park to take the other round.” [236] The court said of the objection made of improper joinder, that this was “an entire offense ; one joint act done by both. They both joined in the act of singing this libelous and scandalous matter in the public street, at the father’s door, with intent to discredit him and his children. And whether it be two songs or one, or a first and second part of the same song, or of separate stanzas, one on John, and another on Jane, yet it is one entire offense; and the more there are that joined in it, the greater is the offense.” II. The defendants are Belgians, and it appears that the words were spoken in the French language in the presence and hearing of Belgians. The cause was tried by the aid of.an interpreter. The indictment sets out the words in the English language, and omits to set them out in the language in which they were uttered. This was wrong. The words should be charged as spoken, and in the tongue spoken. They should then be followed by a proper translation. Zennobis v. Axtel, 6 T. R. 162; Warmoth v. Cramer, 3 Wend. 394; Kerschbaugher v. Slusser, 12 Ind. 453; Hickley v. Grosjean, 6 Blackford, 351; Odger’s Libel & Slan. 109, 110, 470; Newell on Defamation, Slander & Libel, 277, 637. And in this respect there is no difference between a civil and criminal prosecution. Cook v. Cox, 3 M. & S. 110. The motion in arrest should have been sustained. We will, therefore, reverse the judgment and discharge defendants. All concur.