Taylor vs. The State of Georgia.

ert M. Goodwin, the argument would not have been had, Is not the expression used, of equivalent import? Can you libel a man's character without libelling the man himself? Can you speak of and concerning a man's character, and yet say nothing of and concerning the man himself? The distinction attempted in the argument, I confess, is too subtle for my comprehension. A man's character, it seems to me, is the best part of him, and when you speak of his character you necessarily speak of him. What would you think of a defendant, who would put his defence upon the ground, that he had libelled the prosecutor's character, but not the prosecutor himself. And yet this defence might well be, if the distinction now contended for is just. It is then my opinion that the introductory averment in this indictment, that the libel contains libellous matter of and concerning the character, &c., of Robert M. Goodwin, is an averment to which the inuendoes may be referred. These inuendoes, therefore, do not add new matter, but properly discharge the office of the inuendo, in explaining something that has gone before. I have not particularly criticised the authorities to which I have been referred, although I have read them carefully, because the legal proposition of the defendant's counsel is admitted to be law, and in all the cases in which the indictment was adjudged to be insufficient, the indictment had neither the words " of and concerning," nor any words of like import. Such is not the fact in the indictment before me, The motion in arrest of judgment is therefore refused.

The first ground of the motion for a new trial is in these words: "Because after the evidence of Charles Davis, a witness for the prosecution, had closed, his honor refused to permit the defendant to cross-examine the said witness, as to the fact of publication, or any other fact." The fact as it occurred, is not correctly set forth, in this ground of the motion. The direct examination of Charles Davis had not closed, when counsel insisted upon his right of cross-examination, and my decision was, that the cross-examination could not commence, until the direct examination had closed. The libel, on being shown to the witness, was identified by him, as the libel which the defendant had put into the advertising-box, and on which the defendant had written "3 insertions," "Editors of Republican." The witness received. the information from Taylor himself, after the publication in the paper. He also testified that Taylor, the defendant, paid for one

Taylor vs. The State of Georgia.

insertion, and said that the publication had had the effect intended, and that more insertions were unnecessary. The paper was then offered in evidence, and objected to, on account of discrepancy: the objection was overruled and the paper read to the jury. I am unable to see any thing in the above facts which entitles the defendant to a new trial; nor am I able to see anything as stated in the grounds of the motion, which entitles the defendant to a new trial. For according to my view, after the libel had been identified, and the defendant connected with it, by proof that he had put it in the advertising-box, and had written the direction to the Editors to insert it three times, and had after the publication, stated farther that one insertion having had the effect intended, more insertions were unnecessary, and actually paid for the one insertion, that the prosecution had a right to have the libel read to the jury. No cross-examination, as to the fact of publication, or any other fact, could make it proper to withhold the libel from the jury. The fact of publication is a matter for the determination of the jury, and any circumstances, which might explain the defendant's connection with the libel, so as to release him from guilt, were circumstances of which the jury should judge, and could not furnish any legal ground of withholding the libel from the jury. For the purposes of the defence, the cross-examination as to the fact of publication and as to other facts, is as good after the libel has been read to the jury, as it could be before it is thus read, unless indeed it be the idea of counsel, and such from his argument I presume is his idea—that it is the duty of the judge, when the libel is offered in evidence, to determine first, if the defendant has published the libel; and second, if he has published it, whether he published it under circumstances which relieve him from guilt. In other words, on the trial of an indictment for libel, whenever the libel is offered in evidence, it is the duty of the judge to declare his opinion of the guilt or innocence of the defendant, by the admission or rejection of the testimony. As judge I have not so understood my duty. The second ground of the motion for a new trial is, "because the verdict of the jury is contrary to law and evidence." From the argument of counsel I learn that the verdict is contrary to law, because the court admitted illegal testimony, and I further learn, that the illegal testimony referred to, is the admission of the libel. It is argued that the libel ought not to have been admitted, because it is not set forth in the indict

Taylor vs. The State of Georgia.

ment. This is precisely the question, I have already determined, while considering the motion in arrest of judgment. The doctrine in the case of Bell vs. Byrne, and other cases to which I have been referred, is not disputed, viz: that the libel offered in evidence, must correspond with the libel set out in the declaration or indictment. And the only question is, whether the libel now offered in evidence, corresponds with the libel set out in the indictment. The argument of counsel is that it does not, because the libel offered in evidence, being signed by Charlotte Taylor, is proof of an assertion or publication by the defendant, that Charlotte Taylor had said these things of the prosecutor, whereas the indictment charges the defendant, with saying or publishing these things himself. I think that I have stated the argument in its full force, and I will assume the argument to be true, that the signature of Charlotte Taylor to the libel offered in evidence, is proof that the publication of James Taylor is, that Charlotte Taylor had said so. Now apply the same reasoning to the indictment. If the signature of Charlotte Taylor to the libel, is proof that the libel of James Taylor is, that Charlotte Taylor had said so, then the signature of Charlotte Taylor set out in the indictment, is an averment, that the libel of James Taylor is that Charlotte Taylor said so. Whatever effect the signature of Charlotte Taylor has out of the indictment, it must have the same effect in the indictment. The English language cannot express more emphatically, that this libel purported to be signed by Charlotte Taylor, than is in the fac simile of the libel with Charlotte Taylor's signature.— If the signature of Charlotte Taylor to the libel proves what counsel says it does prove, then the signature of Charlotte Taylor to the libel set out in the indictment, proves the averment, or rather is itself an averment, in the indictment, such as counsel says is necessary. But all this argument is unnecessary. The question is whether the libel offered in evidence corresponds with the libel set out in the indictment. We lay the one by the other, and compare them, and we find that each is a fac simile of the other.Do they not correspond? Let common sense answer. Upon what principle could I rule out this testimony? The argument at the trial, and on this motion is, rule it out on the ground of discrepancy. I can only say, if there is any discrepancy I have been, and am now too stupid to see it.

[3.] The latter branch of this ground of the motion is that the

Taylor vs. The State of Georgia.

verdict is contrary to evidence, and the argument is that it is contrary to evidence, because no malice was proven at the trial; and that no malice was proven, because the advertisement was for protecting the legal rights of defendant's wife, a matter in which he was interested. I have been referred to Delany vs. Jones, (4 Esp. 191,) and. Hargrove vs. Le Breton, (4 Burr. 2422.) Authority on this subject is unnecessary. But the question here is, if the advertisement did not unnecessarily reflect upon the character of the prosecutor? You may advertise, and the advertisement may convey an imputation, injurious to another's character, and yet you may be innocent of the crime of libel, but that imputation must be necessary to effect the bona fide purpose of the publication. The moment you transgress the limits, necessary for effecting the legal and bona fide object of your advertisement, you are guilty, unless you can prove the truth of your publication. Now was it necessary, in order to protect the legal rights of Mrs. Taylor, that the advertisement should charge upon the prosecutor, that "he had obtained from Mrs. Scarborough a deed, which he knew to be illegal, and under colour of which he was about to sell certain property?" From the testimony of Mr. Davis, it would seem, that the very object of the publication was, to provoke a prosecution, for the purpose of bringing to light certain papers. Was this necessary for the protection of any legal rights. If not, was there any testimony to prove that the prosecutor obtained from Mrs. Scarborough, a deed, which he knew to be illegal? The true answer to this ground of the motion, however, is this, that it has reference to questions belonging exclusively to the jury. I did not decide them at the trial, nor am I disposed to decide them I charged the jury, at the trial, that malice was essential— that malice consisted in the intention of the party to do the particular mischief, that the legal presumption was, that the party intended that which he did do; but that explanatory circumstances might rebut the presumption; that it would be a good defence, for example, to show that the libel was published bona fide, with the view of protecting the legal rights of Mrs. Taylor, provided the limits necessary for protecting those rights, had not been exceeded; that a lawful occasion could not be used by any one, for the purpose of venting his malice; that if he did, he was bound to prove that his assertions were true. Upon these points the jury have passed, and they have found against the

now.

Taylor vs. The State of Georgia.

defendant. With that finding I cannot interfere. The motion for W. B. FLEMING, J. E. D. Ga.

a new trial is refused.

To which decision the Defendant excepted, and has assigned the

same as error.

E. J. HARDEN-for Plaintiff in error.

Sol. Gen'l GAULDEN and M. H. MCALLISTER, for Defendant in Error.

By the Court-WARNER, J. delivering the opinion.

This case comes before us on a bill of exceptions to the decision of the court below, refusing to sustain the defendant's motion in arrest of judgment, and to grant him a new trial. We have carefully examined the written opinion of the presiding Judge in the Circuit Court, contained in the record, overruling the defendant's motion on both the grounds taken.

[4.] While we are of the opinion it would have been more regular, as a matter of practice, to have permitted the defendant's counsel to have cross-examined the witness introduced to prove the publication of the libel, before giving in evidence the libel to the jury; yet we do not think the defendant was deprived of any legal right, because the Court permitted the paper to be read to the jury, before the defendant's counsel had cross-examined the witness. The fact of publication, was a question for the jury to decide, and the defendant was not prevented by the Court from fully cross-examining the witness concerning that fact.

The motion for a new trial, and in arrest of judgment, was in our opinion properly overruled by the Court below, for the very satisfactory reasons contained in the written decision of the presiding Judge, transmitted with the record before us. Let the judgment of the Court below be affirmed.

VOL. IV.