페이지 이미지
PDF
ePub

provided, that the subsequent intermarriage of the parties may be pleaded in bar of a conviction."

The criminal action will only lie if the woman was of previous chaste character and there is no presumption that this was the fact. It must also be shown that the illicit intercourse was brought about by a promise to marry, although such promise need not have been express. Seduction is accomplished under promise of marriage when intercourse is had on the conditional promise that if the female submits to intercourse, the offender will marry her. Generally speaking what has been said of the civil action of seduction applies also to the criminal action.

Libel.-Libel is any matter, written, printed, or by figures or similar means, published and calculated to injure the character of another, by bringing him into ridicule, hatred or contempt. Any imputations which tend to subject one to disgrace, ridicule or contempt are libelous per se; that is, they are actionable without proof of special damage, the law presuming that the libelled person was damaged thereby. An action for libel may be maintained for words published which tend to bring the plaintiff into public hatred, contempt or ridicule, even though the same words spoken would not have been actionable. Written slander (libel) is necessarily attended with such deliberation, and its publication is so well calculated to produce permanent mischief, that an action may be maintained for the publication of written words when it could not be maintained for the publication of the same words by mere oral discourse.

The defamation must be published in order to make it actionable. It is published when made to or in the presence of another or when one causes it to come to the notice of another. Thus, the sending of a telegraphic message is a publication. Publication made without authority is publication only by the one making it.

The language used is to be construed in the plain and popular sense in which other people would naturally understand it. So, in construing an article, the scope and object of the whole article is to be considered, and such construction put upon its language as would naturally be given to it. It is immaterial whether the defamation be made in direct terms or indirectly, or by way of insinuation, allegory or other artful disguise, so long as it would be understood to be defamatory

by men of ordinary intelligence. It is immaterial whether any one believed the defamatory charges.

There are circumstances in which men will be excused for publishing what would otherwise be a defamation and be actionable. Such communications are said to be privileged. The privilege may be absolute or prima facie merely. In the former case, the privilege cannot be overturned by showing that the publication was made with actual malice. Absolute privilege is accorded in legislative and judicial proceedings and acts done in the exercise of military and naval authority. In the latter case the prima facie privilege is overturned by proof of actual malice. The common cases of communications which are prima facie priveleged are: Communications believed to be true and made bona fide upon any subject matter in which the party communicating has an interest or in reference to which he has a legal or moral duty; or if made to a party having a corresponding interest or duty. This alternative statement only makes it necessary that there be an interest or duty on the part of the person making the communication or on the part of the person to whom it is made in order that it be conditionally privileged. The duty or interest need not be a legal one but only a moral and social duty of imperfect obligation. Thus, a communication made confidentially to one having an interest in the information sought, is prima facie privileged, as an inquiry regarding the credit standing of a trader, or from a prospective employer regarding the honesty, etc. of a former employe or the report of a mercantile agency regarding the financial standing of the person inquired about, or statements between professional men and their clients or patients, or communications of an agent or servant to his principal or master regarding the business of his employment. In addition to this, our statutes do not allow clergymen and ministers to disclose confessions made while acting in a professional character, in the course of discipline enjoined by the rules or practice of the religious body to which they belong, without consent thereto by the party confessing, and physicians and surgeons and attorneys at law are not allowed to disclose communications made to them while acting in a professional capacity. The statute makes the privilege that of the patient or client, and neither the physician or attorney can be compelled, nor allowed, to disclose the information he has obtained, against the will or without the patient's or client's consent.

Proof of the truth of a libel or slander is a defense, but the justification must be as broad as the defamation in order to be a complete defense. It is no defense that the words were simply repeated because a rumor existed as to the matter published, or because they were already published by others, or because they were believed to be true by the party publishing them.

Actions for libel must be brought within two years and cannot be brought before a justice of the peace---the circuit court has jurisdiction over them. Causes of action for libel or slander are not assignable.

The following statute somewhat abrogates the common law as to libel in Wisconsin: The proprietor, publisher, editor, writer or reporter upon any newspaper published in this state shall not be liable in any civil action for libel for the publication in such newspaper of a true and fair report of any judicial, legislative or other public official proceeding authorized by law, or of any public statement, speech, argument or debate in the course of such proceeding. This section shall not be construed to exempt any such proprietor, publisher, editor, writer or reporter from liability for any libelous matter contained in any headline or headings to any such report, or to libelous remarks or comments added or interpolated in any such report or made and published concerning the same, which remarks or comments were not uttered by the person libeled or spoken concerning him in the course of such proceeding by some other person. Any true statement, explanation, correction or retraction published without comment in any such newspaper within a reasonable time after any publication in violation of this section, or after the publication of any libelous matter, or in the next issue after notice of such publication, may be introduced upon the trial of any such action as a sufficient defense against any imputation of malice and against the recovery of any damages except actual damages.

Libel is also a crime under our statutes.

False imprisonment.-False imprisonment is the unlawful detention of the person of another. It is an unlawful interference with the person because the imprisonment is extrajudicial or without process. It is not necessary that the person be actually imprisoned, in a jail or prison. The restraint may be imposed upon him in his own house or any other place.

Nor is it necessary that the restraint be brought about by actual contact with the person. It may be brought about by words and an array of force, without bolts or bars. The unlawful detention is the gist of the action. Thus, were a person holds himself out to be a sheriff and says to a third person: "You are my prisoner; I have a writ against you," and the party submits and goes with him, thinking he was arrested, this would be a false imprisonment. The restraint must in all cases be entire and not upon one's freedom in a particular desired direction only. Thus, where an officer guarded a particular street and restrained the plaintiff from passing that way, other ways being open to the plaintiff but which he did not desire to take, this was held not a false imprisonment.

In order to avoid liability for the imprisonment, the defendant must show that the imprisonment was lawful. The most common justification is where an officer has made an arrest, either with or without a warrant.

If the arrest is under the warrant, the officer must take the proper person under it, and this is so even though the person arrested bears the same name as the real person wanted. But in such case the person of like name must do nothing to cause the officer to fall into error. The arrest of the right person by a wrong name, through a misnomer in the process, without an allegation in the process that the true name is unknown, is a false imprisonment. The officer must also act within his jurisdiction, or he will be guilty of false imprisonment. The party must also not be detained longer than allowed under the process. Thus, where a person was kept in jail by a sheriff for seven days without being granted a preliminary hearing, it was held a false imprisonment. The writ under which the officer acts must also be valid on its face in order to protect him. It is void on its face, 1) if it be materially defective in language, 2) if granted beyond the jurisdiction of the court which issued it, 3) where the court has no right to issue a warrant of arrest in that class of cases, as imprisonment for debt, 4) where the writ emanates from an inferior court or officer, whose jurisdiction is never presumed, the writ may be void. In such a case there may have been jurisdiction in fact, but because it was not shown, it is as if it did not exist. It may be stated as a general proposition that he who sets the machinery of a court in motion and directs its operation until it culminates in an

unlawful arrest upon a void process, is liable to the injured party. The officer alone may be liable, the clerk and judge alone may be liable, the officer and clerk may be liable or all three may be liable, depending on the circumstances of the

The attorney directing the suit and his client may also be liable for the false imprisonment.

A warrant is not necessary in all cases of arrest on a criminal charge, although in civil cases a warrant is always necessary. An arrest may be made without a warrant in cases where the public security requires it, and then only in cases of felony and in breaches of the peace committed in the presence of the officer. If an officer has probable cause to suppose that a person has committed a felony, he may arrest him on suspicion and will not be liable therefor even though the party arrested is innocent. An officer is liable in damages for making an arrest without a warrant in cases of misdemeanors, except for breaches of the peace committed in his presence.

False imprisonment is also a crime, both at common law and under our statutes. “Any person who shall without lawful authority, forcibly or secretly confine or imprison another within this state against his will, or who shall forcibly carry or send another out of this state or from place to place within this state against his will and without lawful authority, or who shall, without such authority, forcibly seize, confine, enveigle or kidnap another with intent to cause such person to be secretly confined or imprisoned in this state against his will or to be sent or carried out of this state against his will, or to be sold as a slave or in any way held to service against his will, shall be deemed guilty of a felony and on conviction thereof shall be punished by imprisonment in the state prison not more than fifteen years nor less than one year; and such offence may be tried in the county where it is committed or in any county into which the person so kidnaped may be carried or sent; and upon the trial thereof the consent thereto of the person so seized, confined, inveigled or kidnaped shall not be a defence, unless it shall be made satisfactorily to appear that such consent was not obtained by fraud, nor extorted or forced by duress or threats.'

Nuisances.-While a precise definition of what constitutes a nuisance cannot be given, it may be said, generally, to be anything wrongfully done or permitted which injures

« 이전계속 »