journey. The privilege commences when the person is setting out on his journey and continues until he reaches the end thereof. A mail carrier is not within the exception, unless while going from one route to another. The traveling may be for business, pleasure or health; for instance, one may be traveling while in pursuit of a fugitive from justice, but a fugitive fleeing from the officers of the law to evade arrest cannot be deemed a person traveling. If, while on one's journey, he departs from his general purpose, to visit saloons, gambling houses and so on, he cannot during that time be deemed a person traveling. 8 § 1037. Officers. The statutes recognize the propriety of certain officers carrying weapons while engaged in the discharge of an official duty. Thus, a deputy marshal is within such exception, but not private detectives and tax collectors.10 Perhaps the belief in good faith that one is an officer and as such entitled to carry a weapon may be considered an excuse, although his warrant of appointment as officer is void;" but one who knows that his right to act as an officer has not been perfected by qualifying in pursuance of his appointment cannot claim such exemption.12 In general, the exception in behalf of an officer only applies while he is in the discharge of his duty.13 § 1038. Indictment.-In general, it is sufficient to charge the offense in the words of the statute, and it is not necessary to allege that the defendant was in the habit of carrying concealed weapons or that the act was done with an unlawful purpose; 14 but it should be alleged and proven that accused 1 Carr v. S., 34 Ark. 448. 2 Coker v. S., 63 Ala. 95; McGuirk v. S., 64 Miss. 209. 3 S. v. Barnett, 34 W. Va. 74. 4 Lott v. S., 122 Ind. 393. 5 Burst v. S., 89 Ind. 133. 11 Blair v. S., 26 Tex. Ap. 387; Rainey v. S., 8 Tex. Ap. 62. 12 Ringer v. S., 33 Tex. Ap. 180. 13 West v. S., 26 Tex. Ap. 95; Love v. S., 32 Tex. Ap. 85; Brewer v. S., 6 Baxt. 446; Miller v. S., 6 Baxt. 449; "Haywood v. S., 66 Miss. 402; Rice Reach v. S., 94 Ala. 113; Bell v. S., v. S., 10 Tex. Ap. 288. 7 Shelton v. S., 27 Tex. Ap. 443. Stilly v. S., 27 Tex. Ap. 445; Rati gan v. S., 33 Tex. Ap. 301. 9 In re Lee, 46 Fed. R. 59. 100 Ala. 78. If the exception depends on being engaged in executing criminal process, the officer must introduce the process in evidence or a certified copy thereof if obtainable: 10 Horn v. S., 6 Lea, 335; Gayle v. Beasley v. S., 5 Lea, 705; Carmichael S., 4 Lea, 466. v. S., 11 Tex. Ap. 27. 14 S. v. Swope, 20 Ind. 106. does not belong to any of the classes of persons exempted from the provisions of the statute.1 § 1039. Evidence.- Until evidence is introduced as to the fact of carrying a weapon concealed it is not necessary for defendant to give any explanation as to his possession thereof. Possession, however, is by some statutes made prima facie evidence of concealment; but on the production of evidence that the weapon was carried outside the clothing and uncovered the presumption of concealment is rebutted. Where the claim on the part of the defendant is that he was an officer, his statements at the time of exhibiting his weapon that he was such officer are admissible as a part of the res gesta, and not being contradicted constitute a defense. The act of carrying is deemed continuous, and it is therefore not necessary that the evidence shall relate to the same moment of time. The proof must correspond to the allegation as to the description of weapon carried, but the term "brass knucks" being one descriptive of a kind of weapon rather than of the material used, the proof may show the carrying of such an instrument made of lead instead of brass. An indictment for carrying two weapons concealed is sufficiently sustained by proof of the carrying of one of them." 1P. v. Pendleton, 79 Mich. 317; S. v. Duke, 42 Tex. 455; Young v. S., 42 Tex. 462; Smith v. S., 42 Tex. 464; Summerlin v. S., 3 Tex. Ap. 444; S. v. Clayton, 43 Tex. 410. Contra, C. v. McClanahan, 2 Met. (Ky.) 8. Ridenour v. S., 65 Ind. 411. 'S. v. McManus, 89 N. C. 555; S. v. Woodfin, 87 N. C. 526; S. v. Hayne, 88 N. C. 625. 4S. v. Roten, 86 N. C. 701. Irvine v. S., 18 Tex. Ap. 51. So a statement as to the intended use of the weapon made at the time of borrowing it is admissible: Wilson v. S., 33 Ark. 557. 6 Dean v. S., 98 Ala. 71. 7 Patterson v. S., 3 Lea, 575. 8 C. v. Howard, 3 Met. (Ky.) 407. 210 CHAPTER 45. LIBEL AND SLANDER. § 1040. Nature of the offenses.-The criminality of libel is made to depend upon the tendency of the publication of defamatory matter, by writing, printing, signs or pictures, to cause a breach of the peace.1 It is assumed that spoken words alone will not have so great a tendency, and therefore slander is not, in general, made criminal. This distinction seems arbitrary, and has, to some extent, been obliterated by statute in a few of the states making slander punishable in particular cases, but in the main it is preserved as a fundamental distinction in the law of criminal defamation. A civil action for damages for the same libel is no bar to a criminal prosecution therefor. 2 § 1041. Definition.—It is difficult to give a definition of libel which shall suggest the different forms which it may take, but Blackstone's definition will serve the purpose of a short description to be explained by illustrations. It is, in substance, a malicious defamation of any person made public by either printing, writing, signs or pictures, in order to provoke him to wrath or expose him to public hatred, contempt and ridicule." § 1042. Common law or statutory.-Libel is an offense at common law. There are various statutory definitions in the 11 Hawk. P. C., ch. 73, § 3; 4 Bl. Com. 150; Case De Libellis Famosis, 5 Coke, 125; Moody v. S., 94 Ala. 42; Reg. v. Lord Mayor, 16 Q. B. D. 772; Reg. v. Holbrook, 4 Q. B. D. 42, 46. See infra, § 1057. 31 Bish. Cr. L., SS 470, 540, 591. 4 Foster v. C., 8 Watts & S. 77. 54 Bl. Com. 150. And see, for a fuller definition, the following: "A libel is a malicious publication in printing, writing, signs or pictures, imputing to another something which has a tendency to injure his reputation, to disgrace or degrade him in society, and lower him in the esteem and the opinion of all, or to bring him into public hatred, contempt or ridicule:" S. v. Jeandell, 5 Harr. 475. Bishop's definition is concise, but perhaps too broad to represent the law as it actually stands. It is as follows: "A libel is any representation in writing, or by pictures, effigies, or the like, calculated to create disturbances of the peace, to corrupt the public morals, or to lead to any act which, when done, is indictable:" 2 Bish. Cr. L., § 907. 6 S. v. Burnham, 9 N. H. 34; C. v. Chap, 4 Mass. 163; C. v. Blanding, 3 different states, but frequently these are merely a designation of the offense as it existed at common law. The English statute on the subject has been held not to be a definition but a description only, providing a punishment for what is criminal by the common law.1 4 § 1043. As against private individuals.- Words which impute to another any act, the tendency of which is to disgrace him or deprive him of the confidence and good will of society, or lessen its esteem for him, are libelous per se. It is not necessary that the publication impute a crime. Thus, a publication is libelous which charges another with corruption or misconduct as a juror in reaching a verdict by a game; or with having been ejected from a house of ill-fame; or with being a scoundrel; or with having had his house searched for stolen property; or with having, as a political worker, aimed to secure doubtful pension grants and anti-convict-labor bills to catch votes. But a newspaper article commenting on the attitude of a person named in not contributing to a fund was held not to be libelous, as it did not impute to him any moral delinquency or conduct unfitting him for general society, or expose 8 7 2 S. v. Smily, 37 Ohio St. 30; S. v. Schmitt, 49 N. J. 579; P. v. Jackman, 96 Mich. 269; C. v. Wright, 1 Cush. 46; Hartford v. S., 96 Ind. 461; S. v. Spear, 13 R. L. 324. Thus, it is libelous to charge one with having been pardoned from the penitentiary: S. v. Brady, 44 Kan. 435. To write a letter in the name of another, using language such as is calculated to subject the supposed writer to public hatred and contempt, is libelous: S. v. Hollon, 12 Lea, 482. 3 Hartford v. S., 96 Ind. 461; S. v. Spear, 13 R. I. 324; S. v. Henderson, 1 Rich. 179. It was held libelous to 4 Hartford v. S., 96 Ind. 461. 6 P. v. Jackman, 96 Mich. 269. 8 S. v. Smily, 37 Ohio St. 30. 9 S. v. Schmitt, 49 N. J. 579. So, a newspaper article charging a realestate agent with discriminating against negroes and advising such persons not to patronize him, but to leave "the old skunk to himself to stink himself to death," was held libelous: Pledger v. S., 77 Ga. 242. A newspaper article reporting the filing of an information for assault and battery characterized the act as "brutal;" held, that this was sufficient to degrade and disgrace the party charged, and therefore libelous: C. v. Keenan, 67 Pa. St. 203. 2 him to ridicule or contempt. It is a libel to send to another through the mail an envelope bearing an address thereon in large letters "Bad debt collection agency." So also there may be a publication as to another's property which will expose him to hatred, contempt or ridicule, and therefore be libel ous.3 § 1044. As against a family or class or corporation.— A libel need not be on a particular person, but may be upon a family or class of persons, if the tendency of the publication is to stir up riot and disorder and incite to a breach of the peace. Therefore it was held to be a criminal libel to publish that "Gov. Harvey pardoned his own brother out of the penitentiary," although there might be more than one brother. So there may a libel on a corporation. § 1045. As against wife.- A husband is not indictable for defaming his wife, and it has been so held in England notwithstanding the married woman's property act. § 1046. As against the dead.—The publication of a libel on the character of a dead person in pursuance of a malicious purpose to vilify the memory of the deceased, with a view to injure his relatives, may, it seems, be criminal; but to falsely and maliciously announce the death of a person with intent to annoy and harass him and his family does not constitute a libel.10 § 1047. As against public officers.-The publication of a charge against a public officer, imputing to him dishonesty and corruption in the discharge of his official duty, is libelous." § 1048. As against government.-In England publications inveighing against the government, tending to degrade and vilify it and promote discontent and insurrection, have been held libelous,12 but the doctrine of freedom of the press has been so 1 P. v. Jerome, 1 Mich. 142. 4S. v. Brady, 44 Kan. 435; Palmer v. Concord, 48 N. H. 211; Rex v. Williams, 5 B. & Ald. 595. 5 S. v. Brady, 44 Kan. 435. 6 S. v. Boogher, 3 Mo. Ap. 442. 7S. v. Elens, 95 N. C. 693. Reg. v. Lord Mayor, 16 Q. B. D. 772. 9 C. v. Clap, 4 Mass. 163; Rex v. Topham, 4 T. R. 126; Reg. v. La- 11 C. v. Damon, 136 Mass. 441; C. v. Child, 13 Pick. 198; S. v. Mott, 45 N. J. 494. 12 Rex v. Pain, Comb. 358; Rex v. Woodfall, Lofft, 776; Reg. v. Collins, 9 Car. & P. 456; Reg. v. Lovett, 9 |