Commonwealth v. Stambaugh.

member of the association, and he was also the editor of a newspaper called the R. F. D. News, which for some years had been the official organ of the association, publishing the reports of the proceedings of the conventions and circulating the paper among members of Congress. The defendant was the president of the Pennsylvania Rural Letter Carriers Association, and was interested in another newspaper called the Rural Delivery Record, published at York, Pennsylvania. He prepared a circular letter to the rural carriers of Pennsylvania, which was signed at his request by V. B. Clark, the secretary of the Pennsylvania association, and therein, after referring to certain actions of the R. F. D. News, he said: "But all this would be overlooked were it not for the fact that W. D. Brown, editor of the R. F. D. News, the man who is supposed to represent us, and who many of our carriers think was responsible for this latest increase, had betrayed us time and again, and taken credit for many things that others secured for us." The publication of these words was asserted to be libelous and was the ground upon which the prosecution rested. The Court, in its general Charge, fully defined the offense of libel, quoting the Act of Assembly upon the subject. We then added: "The malice involved in the offense is not necessarily actual ill-will entertained by the accused toward the subject of the libel. The law imputes to one who does such a wrongful act a malicious intent. Every responsible person is presumed to intend the natural consequences of his act and is not permitted to deny that he intended them. If the publication be defamatory, an inference of malice arises which it is the duty of the jury to find from the character of the publication." In answer to the point, we said: "I think we have answered that point in the general Charge. We have read to you the Act of Assembly which defines what libel is, and in it, it is stated to be a malicious or defamatory libel; that the malice involved in the offense is not necessarily actual ill-will entertained by the accused toward the subject of the libel; that the law imputes to one who does such a wrongful act a malicious intent; that every responsible person is presumed to intend the natural consequences of his act and is not permitted to deny that he intended them; and that, if the publication be defamatory, an inference of malice arises which it is the duty of the jury to find from the character of the publication." In Pittock v. O'Niell, 63 Pa. 253, it is said that a charge of shameless treachery and hypocrisy is one calculated to excite public hatred and to degrade the character of him against whom they are uttered; and in Holland v. Flick, 212 Pa. 201, that any written words are libelous per se which in any manner are prejudicial to another in the way of his employment or trade.

In Neeb v. Hope, 111 Pa. 145, Mr. Justice Trunkey, delivering the opinion of the Court, said: "Any malicious publication, written, printed or painted, which by words or signs tends to expose a person to contempt, ridicule, hatred or degradation of character, is a libel; and the person libeled may recover damages, unless it be shown that the publication was true, or that it was justifiably made: Barr v. Moore, 87 Pa. St. 385." He then added: "Malice is said to be essential to an

Commonwealth v. Stambaugh.

action for libel, but it is malice in a special and technical sense, which exists in the absence of lawful excuse, and where there may be no spite or ill-will, or disposition to injure others. Every publication having the other qualities of a libel, if wilful and unprivileged, is in law malicious. The publication of words actionable in themselves is sufficient evidence of legal malice. Legal malice exists where a wrongful act is done intentionally. . . . Where the defendant published words which injured the plaintiff's reputation, he must be taken to have intended the consequences naturally resulting therefrom, and the question whether the defendant acted maliciously or not should not be left to the jury, unless the occasion be privileged." Again, in Commonwealth v. Brown, 1 Dist. Rep. 565, it was held that, “in libel, it is not necessary, in order to prove malice, to show that the accused bore the injured party ill-will; if the publication be wilful, and is not privileged, malice may be inferred." In Commonwealth v. Sanderson, 2 Clark 54, the Court said: "The defendant's malice consists in his intention to effect certain particular mischief, and, as in other cases, what he intends must be inferred from what he does; . . . if the very terms of the defamation tend to scandalize, degrade and injure the individual, . . . the intention of the defendant to effect these objects must necessarily be inferred without the aid of extensive proof." A large number of cases fully support these propositions.

It must be remembered that, in this case, the circular was issued to various members of the Pennsylvania Rural Letter Carriers Association, and upon its face it showed that the primary purpose of the issue was the obtaining of subscribers for the newspaper which the defendant was championing and in which he had an interest, and not the welfare of the society. The publication was, at best, only in a sense semiprivileged, and it was for the jury to say whether, under the circumstances, that privilege, if it did exist, was abused and was thereby lost. The facts were fully submitted to the jury, and I think the law was correctly explained in the charge and in the answers to the points.

This discussion practically covers all the other reasons assigned, and nothing can be profitably added to it.

I am of the opinion that the rule for a new trial should be discharged. Rule discharged.

Commonwealth v. Burkhart.

Sufficiency of complaint and indictment-Motor vehicle Act of July 7,

1913.

An information is sufficient which sets forth the essential elements of the offense in common parlance.

An indictment is sufficient under the Act of July 7, 1913, P. L. 672, which sets forth that the defendant failed to sound his horn or give reasonable warning of his approach to a street crossing, where the borough authorities had “duly erected signs, easily readable from the highway, and at right angles thereto, bearing thereon in letters at least five (5) inches in height the words 'Danger. Blow your horn", although the allegation as to the signs erected was not contained in the complaint.

Commonwealth v. Burkhart.

Indictment No. 31 of September Sessions, 1919, for violation of Motor Vehicle Act of 1913.

Motion to quash.

John E. Malone, for motion.

S. V. Hosterman, Asst. Dist. Atty., contra.

December 27, 1919. Opinion by LANDIS, P. J.

There are two counts in the indictment, but it will be observed that the motion to quash relates only to the second one. That count reads: "And the Grand Inquest aforesaid, upon their respective oaths and affirmations aforesaid, do further present, that the said Isaac S. Burkhart, afterwards, to wit: On the same day and year aforesaid, at the county aforesaid, and within the jurisdiction of this Court, with force and arms, &c., did unlawfully, while operating a motor vehicle, fail to sound his horn or give reasonable warning of his approach of the road crossing of East Main Street and Washington Avenue, in the Borough of Ephrata, county aforesaid, the proper authorities of the said Borough of Ephrata having duly erected signs, easily readable from the highway, and at right angles thereto, bearing thereon, in letters at least five (5) inches in height, the words, 'Danger, Blow Your Horn,' contrary to the form of the Act of the General Assembly," &c. The motion to quash asserts that the latter portion of the charge thus recited is the basis of this count, and that these necessary words do not appear in the complaint.

By a reference to the complaint, it will be found that the charges against the defendant, as therein set forth, were: That he "did drive recklessly an automobile west on Washington Avenue, Ephrata, Penn'a, at a rate of speed greater than is reasonable to the width and traffic, and in such driving did endanger lives and property, contrary to Section 14 of the Act of General Assembly of 1913, also failed to blow his horn before reaching the crossing on East Main Street and Washington Avenue," &c.

It was provided, by Section 13 of the Act of July 7, 1913, P. L. 672, that "every operator of a motor vehicle shall sound his horn, bell or signal device, giving reasonable warning of his approach, whenever necessary to insure the safety of other users of the highways, and also when approaching a street or road crossing, dangerous curve, in any of the cities, boroughs or townships of this Commonwealth, where the proper authorities shall have erected signs, easily readable from the highway, and at right angles thereto, bearing thereon, in letters at least five (5) inches in height, the words, Danger; Blow Your Horn.'"

It is obvious that the complaint does not contain the information that the proper authorities of the Borough of Ephrata had “erected signs, easily readable from the highway, and at right angles thereto, bearing thereon, in letters at least five (5) inches in height, the words, 'Danger; Blow Your Horn.'" But the indictment conforms strictly to the Act of Assembly. I do not think that the indictment is defective on this account.

Commonwealth v. Burkhart.

In Commonwealth v. Dingman, 26 Sup. 615, it was held that, if the essential elements of the offense are set forth in common parlance, the information will be held sufficient; and in Commonwealth v. Campbell, 22 Sup. 98, it is said that it is not necessary that an information should meet the requirements of an indictment; it is enough if it contains the essential elements of an offense, and it need not negative matters of defense arising from statutory exceptions.

The motion to quash is, therefore, overruled.
Motion overruled.

Bar Meeting to Endorse Judge Sadler.

A largely attended special meeting of the Lancaster County Bar Association was held in Court Room No. 2 at 2 o'clock p. m., Monday, February 23d, 1920, pursuant to a petition signed by two score members of the Bar, at which the following resolution offered by John A. Nauman was unanimously adopted:

"Whereas, a vacancy will occur in the office of Justice of the Supreme Court of Pennsylvania by reason of the expiration of the term of Honorable J. Hay Brown, Chief Justice of said Court, on the first Monday of January, A. D. 1921;

"And, whereas, a candidate will be nominated at the coming primary election and elected at the General election in November, 1920, to fill said vacancy ;

"And, whereas, the Honorable Sylvester B. Sadler, President Judge of the Ninth Judicial District, has been mentioned as a candidate for said office of Justice of the Supreme Court;

“And, whereas, the said Honorable Sylvester B. Sadler is especially well fitted by reason of his integrity, his education, legal intelligence and experience on the Bench to fill the position of Justice of the Supreme Court aforesaid;

Therefore, be it resolved, that the Lancaster Bar Association hereby endorses the candidacy of the Honorable Sylvester B. Sadler for the office of Justice of the Supreme Court of Pennsylvania."

Book Notice.

Volume 11 of Decisions of Courts, Amendments, Rules of Procedure, etc., relating to the Workmen's Compensation Act. Dunlap Printing Co., Philadelphia.

Chairman Mackey of the Workmen's Compensation Board of Pennsylvania has published a second volume of Court Decisions in Compensation Cases, including in the volume the Compensation Act as amended by the Legislature of 1919, also new Rules of Procedure and forms, and a digest of the decisions of the Courts from 1916 to 1918, inclusive. This compact and comprehensive little book will be a great assistance in the conduct of compensation cases.

Court of Common Pleas of Lancaster County

Long v. Book.

Farm lease-Surrender of—New oral agreement-Consideration.

A written agreement to farm on the shares may be terminated by parol and a new oral agreement to farm for a fixed sum may be entered into, the tenant remaining in possession, and on suit by the tenant for the sum agreed upon the defendant cannot set up want of consideration and that there was no surrender of the lease because the plaintiff remained on the premises.

The case was properly submitted to the jury on the question whether the lease was cancelled and a new contract substituted.

May Term, 1917, No. 63.

Rule for a new trial.

B. F. Davis, for defendant and rule.

John M. Groff, contra.

December 27, 1919. Opinion by HASSLER, J.

In his statement the plaintiff seeks to recover on a verbal contract. He alleges that he and the defendant entered into a written agreement to farm defendant's farm from April 1, 1916 to April 1, 1917 on the shares; that on July 16 an execution was issued against him, whereupon he surrendered the lease, at the request of the defendant, and they then made a new verbal agreement, in which it was agreed that the defendant was to pay the plaintiff the sum of $480.00 for farming the farm from April 1, 1916 to April 1, 1917, together with certain other advantages. The other items of the plaintiff's claim are fully set forth in the statement. The defendant denied most of these allegations in his affidavit of defense.

At the trial the plaintiff produced testimony to support all the allegations of his statement. Both he and his wife testified that when the execution was issued against him he surrendered the written lease at the request of the defendant, and made the verbal agreement set forth in the statement, which was proposed by the defendant, that he was to be paid $480.00 for farming the farm for the year ending April 1, 1917, with certain other advantages. The defendant denied this, but the jury found that the term under the lease had been surrendered by the plaintiff, which surrender was accepted by the defendant, and that the new agreement was made in place of it, in which findings the jury was fully justified by the testimony.

It is contended in this application for a new trial that there was no surrender of the lease because the plaintiff remained on the farm, and there was no consideration for the new agreement, so that no new contract was made.

VOL. XXXVII, No. 19