averred, as it is doubtful whether the mere composition and writing is an offence. q 2. How Libellous Matter must be set out. § 2589. The alleged libellous matter also must be set out accurately, any variance being fatal. r Matters collateral need not be exactly alleged. Thus an indictment charging that the defendant published a libel on the twenty-first of the month, may be supported by a publication on the nineteenth of the same month. It is otherwise, however, if the indictment has alleged that the libel was published in a paper dated the twenty-first of the month. 8 § 2590. Where parts are selected, they must be set forth thus: "In a certain part of which said," &c., "there were and are contained certain false, wicked, malicious, scandalous, seditious, and libellous matters, of and concerning," &c., "according to the tenor and effect following, that is to say: ","And in a certain other part," &c., &c. t The date at the end of the libel need not be set forth. u If the libel be in a foreign language, it must be set out in such language, verbatim, together with a correct translation. v § 2591. General rule. The manner in which the libel must be set forth has been heretofore considered. w It is enough now to say that if the indictment does not on its face profess to set forth an accurate copy of the alleged libel in words and (968) Obscene libel. First count, not setting forth libellous matter. (969) Second count. Publishing an obscene picture. (970) Exhibiting obscene pictures. 9 R. v. Burdett, 4 B. & Ald. 95. r Cartwright v. Wright, 1 D. & R. 230; Walsh v. State, 2 McCord, 248; Com. v. Sweeney, 10 S. & R. 173; State v. Brownlow, 7 Humph. 63; Com. v. Tarbox, 1 Cush. 66; Wright v. Clements, 3 B. & Ald. 503. See ante, § 305-13, 506-9, 1482. s Commonwealth v. Varney, 10 (972) Indictment for threatening to Cush. (Mass.) 492. (974) Sending a letter threatening to (975) Sending a threatening letter. t See 1 Camp. 350, per Lord Ellenborough; Archbold's C. P. 494. Ante, § 312. u Com. v. Harmon, 2 Gray, 289. v Zenobio v. Axtel, 6 T. R. 162. Ante, § 313. w See ante, § 307, 1474, 1482. figures, it will be held insufficient, on demurrer, or in arrest of judgment. x It is not sufficient to profess to set it forth according to its substance or effect. y Where the indictment charged that the libel" contained, amongst other things, in substance, the following false, malicious, and libellous matters and things, according to the tenor and effect following, that is to say,” &c., it was held that this averment professed to set forth the substance and not the words of the libel, and was therefore invalid. z And the same view was taken where the indictment alleged, that the defendant published, &c., an unlawful and malicious libel, according to the purport and effect, and in substance as follows: the words between libel and as follows, cannot be rejected as surplusage. a § 2592. And so where the indictment charged that the defendant" did write a certain false, malicious, and defamatory libel, of and concerning the said E. K., which said false, malicious, and defamatory libel is of the following purport and effect, that is to say," and then set out, with inverted commas, what the evidence showed to be an exact copy of the libel. On a motion in arrest of judgment, it was held that the indictment was bad, because it did not profess to set out the libel in hæc verba. b 3. Authorship must be averred. § 2593. Where it does not appear from the paper itself who was its author, or the persons of and concerning whom it was written, or the purpose for which it was written, each of these should be explicitly averred, as facts for the consideration of the jury.c 4. Libellous Matter must be charged to relate to Prosecutor. § 2594. Where the persons alleged to have been libelled are alluded to in ambiguous and covert terms, it is not sufficient to aver generally that the paper was composed and published “of and concerning" the persons alleged to have been libelled, with x Ante, § 306-7; State v. Twitty, 2 Hawks, 248; State v. Goodman, 6 Rich. 387. y Com. v. Tarbox, 1 Cushing, 66; Com. v. Wright, 1 Cush. 46; State v. Brownlow, 7 Humph. 63. z Ibid. a Com. v. Wright, 1 Cush. 46. Ante, § 306-7. b State v. Goodman, 6 Richardson, 387. c State v. Henderson, 1 Rich. 179. innuendoes accompanying the covert terms, whenever they occur in the paper as set out in the indictment, that they meant those persons, or were allusions to their names. There should be a full and explicit averment that the defendant, under and by the use of the covert terms, wrote of and concerning the persons alleged to be libelled. d § 2595. Under a declaration which alleges the publication of a certain "libel concerning the plaintiff," but contains no innuendoes, colloquiums, or special averments of facts to connect the publication with the plaintiff, if no evidence is offered to connect him therewith, except the publication itself, the question whether the publication refers to the plaintiff is for the court, and not for the jury. e § 2596. An allegation that the defendant published a libel, "tending to blacken the honesty, virtue, integrity, and reputation of the said A. B., and thereby to expose him to public hatred, ridicule, and contempt, in which said false, scandalous, malicious, defamatory, and libellous matters of and concerning the character, honesty, virtue, integrity, and reputation of the said A. B.," &c., is a sufficient allegation that it was "of and concerning A. B."ƒ § 2597. The court will regard the use of fictitious names and disguises, in a libel, in the sense they are commonly understood by the public. g 5. Innuendo. § 2598. An innuendo is an interpretative parenthesis, thrown into the quoted matter to explain an obscure term. It can explain only in cases where something already appears upon the record to ground the explanation; it cannot, of itself, change, add to, or enlarge the sense of expressions beyond their usual acceptation and meaning. It can interpret, but cannot add. h d R. v. Marsden, 4 M. & S. 164; State v. Henderson, 1 Richard. 179; State v. Brownlow, 7 Humph. 63. e Barrows v. Bell, 7 Gray (Mass.), 301. f Taylor v. State, 4 Georgia, 14. g State v. Chace, 1 Walker, 384. h See 2 Salk. 512; Cowp. 684; Mix v. Woodward, 12 Connect. 262; Van Vechten v. Hopkins, 5 Johns. 211; State v. Neese, N. C. Term R. 270; Bradley v. State, 1 Walker, 156; Gosling v. Morgan, 8 Casey, 273. It was held in Pennsylvania in 1870 that where no new essential fact is requisite to the frame of an indictment for libel, and requires to be found by the grand jury as the ground of a colloquium, and where the only object of an innuendo is to give point to the Thus in an action for the words "He is a thief," the defendant's meaning in the use of the word "he" cannot be explained by an innuendo "meaning the said plaintiff," or the like, unless something appear previously upon the record to ground that explanation; but if the words had previously been charged to have been spoken of and concerning the plaintiff, then such an innuendo would be correct; for when it is alleged that the defendant said of the plaintiff " He is a thief," this is an evident ground for the explanation given by the innuendo, that the plaintiff was referred to by the word "he." The indictment must set forth matter libellous on its face, of which the court is to judge, or matter not libellous on its face, and allege that it was intended by the prisoner to be so, in which case the question of intent is for the jury to determine.j § 2599. Where the plaintiff averred, by way of innuendo, that the defendant, in attributing the authorship of a certain article to a "celebrated surgeon of whiskey memory," or to a "noted steam doctor," meant by these appellations the plaintiff, it was held, notwithstanding the innuendo, that the declaration was bad, for want of an averment that the plaintiff was generally known by these appellations, or that the defendant was in the habit of applying them to him, or something to that effect. k § 2600. In another case, in an action on the case against a man for saying of another, " He has burnt my barn," the plaintiff cannot, by way of innuendo, say, "meaning my barn full of corn;" because this is not an explanation derived from anything which preceded it on the record, but from the statement of an extrinsic fact which had not previously been stated. But if in the introductory part of the declaration it had been averred meaning of the language, it is not proper to quash the indictment on the ground that the innuendo may be supposed to carry the meaning of the language beyond the customary meaning of the word. If some of the innuendoes in an indictment for libel extend the meaning of parts too far, but there be others sufficient to give point to it, the jury may convict under the latter alone. If all the innuendoes be defective, the prosecutor has a right to proceed to subject the defendant to costs. Com. v. Keenan, 67 Penn. St. 203. i Archbold's C. P. 494. j State v. White, 6 Iredell, 418. k Miller v. Maxwell, 16 Wend. 9. See, also, 2 Hill, 472, and 12 Johns. 474. 1 Barham's case, 4 Co. 20 a. that the defendant had a barn full of corn, and that, in a discourse about that barn, he had spoken the above words of the plaintiff, an innuendo of its being the barn full of corn would have been good; for, by coupling the innuendo with the introductory averment, it would have made it complete. m § 2601. The court will not resort to innuendoes as a substitute for proper averments. n § 2602. On the trial it is necessary to prove the averments or application of the libellous matter, where the meaning is not clear. o § 2603. On an indictment for a libel against J. C., which libel described her as the only daughter of the widow Roach, the innuendo in the indictment stated the identity of Mrs. R.'s daughter and of the prosecutrix, Mrs. C. It was held that it was not necessary to prove that the prosecutrix was the only daughter. p 6. Lost, destroyed, or Obscene Instruments. § 2604. How a lost or destroyed instrument is to be pleaded has been already discussed. q It is not necessary that obscene language should be set out in full; a general averment of its nature will be sufficient. r IX. VENUE AND JURISDICTION. § 2605. When a libel is forwarded from one country to another, which has jurisdiction? This question has been already incidentally noticed. 8 X. VERDICT. § 2605 a. "Guilty of publishing only" is not a verdict on which judgment can be entered; and the court should refuse to receive it, or, if it be received, direct a second trial. t But a m Archbold's C. P. 494; 4 R. Ab. 83, pl. 7; 85, pl. 7; 2 Ro. Rep. 244; Cro. Jac. 126, 89; 1 Sid. 52; 2 Str. 934; 1 Saund. 242, n. 3; Golstein v. Foss, 9 Dowl. & Ryl. 197; 6 B. & C. 154; Clement v. Fisher, 1 Mann. & Ryl. 281; 7 B. & C. 459; Alexander v. Angle, 1 C. & J. 143; R. v. Tutchin, 5 St. T. R. 532. n State v. Atkins, 42 Vt. 252. o State v. Perrin, 2 Brevard, 474. p State v. Perrin, 1 Tr. Con. Rep. 446; 3 Brevard, 152. q Ante, § 311, 608. r Ante, § 311, 2548. s See ante, § 210 o, 210 s, u, and also ante, § 2566. t R. v. Woodfall, 5 Bur. 2661; see Webber v. State, 10 Mo. 4. |