Commonwealth v. Di Silvestro , 31 Pa. Super. 537 ( 1906 )

Opinion by

Oblady, J.,

The defendants were convicted of criminal libel on a charge preferred by Count Nassilli, the Italian consul at Philadelphia. John and Joseph Di Silvestre were the owners of a newspaper (II Popolo), published in the Italian language, and Carlo Fresco was the writer of the article set out in the indictment. There were indictments against each of the defendants individually, and one against John and Joseph Di Silvestro jointly. The charge in each indictment was the same libel, and all four cases were tried together, a verdict of guilty being rendered in each case. This libel was dated June 3, 1905, and appeared in II Popolo on that date. It had been preceded by a publication of the same character in the same newspaper on May 27th, and was followed by others of like import in ten subsequent issues of the newspaper of the same year. The ownership of the newspaper, the writing and publication of the different articles, and that the prosecutor was the person referred to therein were admitted on the trial by each of the defendants. While there was some slight controversy as to the technical meaning of some of the words used in the publication, the interpreters called by the commonwealth and the defendants agreed that the translations of the article as it appears in the indictment, as well as in the exhibits offered in evidence, are materially and substantially true and correct.

The article charged Count Nassilli with being a bastard, ignorant of his duties, illiterate, weak, despised, the product of corruption and intrigue; that with phenomenal bestiality he preferred to give shyster legal consultations to whoever might innocently apply to him as the representative of his country, and concludes : “ May, at least, the contempt of the conscious crowd mark on the hardened cheeks of these productions of the impertinent favoritism, an indelible stamp of infamy.” Taken with the other issues'of II Popolo there can be no question but that these defendants wrote and published of the prosecutor that he was a buffoon, an imbecile, a swindler, a parasite, a blackmailer, a poltroon, an indirect descendant of royal loins, a man with a brainless head, dishonest, degenerate, an ass who had the good luck of clubbing instead of being clubbed.

The trial judge instructed the jury that the article of June 3, 1905, is libelous in itself, and being thus libelous in itself, the law declares that article to be malicious and criminal. The defendants contended on the trial that the articles were privileged under article I., section 7, of our state constitution, as follows: ‘‘ No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or for any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury;” and the Act of April 11, 1901, P. L. 74, as follows: “ That in all criminal prosecutions no convictions shall be allowed if the subject-matter of the publication relates to candidates for public office and is found, to the satisfaction of the jury, to be proper information or investigation and not to have been maliciously or negligently made. In all such cases the truth may be given in evidence to the jury.”

There was nothing in any of the offers of evidence, which was excluded, to show the duty, character or tenure of the office of consul of Italy at Philadelphia. The articles were not addressed to any functionary having authority to redress grievances, and in many particulars related to matters not of public interest, but were clearly personal and defamatory of the prosecutor as an individual. In every way of reading the publication it is plainly and grossN libelous in itself; vile and opprobrious epithets were repeated even after an action in the civil court had been instituted by this prosecutor against these defendants, and they necessarily tended to degrade him in the opinion of the public: Wood v. Boyle, 177 Pa. 620.

Though some abuses were-alleged relating to fees to be charged in conducting the affairs of the office of consul, they relate to possible rights of persons having business relations with a foreign official and in regard to which none of our citizens could be concerned. Nor would our public be interested in the expending of the moneys furnished by the Italian government to its consul for its home military purposes. The redress for such grievances would be effected through channels over which our laws would not have any control. However, such references represented but a minor part pf the articles, and even if such part could be deemed proper for public information or investigation, which we do not concede, all immunity on that ground is lost to the defendants by the unfair and malevolent character of the publication. The occasion was not privileged, nor the prosecutor a public officer within the meaning of our law. Tiie facts being clearly established by the personal testimony of the defendants, it became a question of law for the court to declare whether or not the communieation was privileged: Neeb v. Hope, 111 Pa. 145; Briggs v. Garrett, 111 Pa. 404 ; Conroy v. Pittsburg Times, 139 Pa. 334; Jackson v. Pittsburg Times, 152 Pa. 406.

Under the record as the defendants made it the question of their good reputation was not material as an item of evidence, and could not have any bearing on the question of their guilt or innocence. Of what avail would it be, to show that the defendants were honest, truthful and law-abiding citizens, when they avow the making and publication of a writing which the law declares to be a malicious libel? Their past conduct as citizens could not change the legal conclusion flowing from their admitted acts.

An earnest argument is urged by the appellants in regard to the answer of the court to their eighth point (twenty-fourth assignment of error) as follows : “ If upon the evidence in the case the jury have a reasonable doubt of the guilt of the defendants, they must give the defendants the benefit of that reasonable doubt and render a verdict of Not guilty; ” the answer being, “ That I decline to charge because there is no evidence in the case on which.you can found any reasonable doubt, such as is indicated in the point itself.” In the general charge the trial judge fairly and fully submitted to the jury to find the correctness of the translation from Italian to English; the general meaning of the words used; the versions representing the spirit and expression of the papers; whether the presumption of malice arising from the character of the publication had been rebutted; the intent and purpose as shown by the repeated publications ; whether the defendants had exercised reasonable care in securing information touching the conduct of the consul, and the good faith of the reports on which they acted; and in answer to the defendants’ seventh point as follows, “ The jury is the sole judge of the law and the facts in all criminal prosecutions for libel,” replied: “ That I affirm, without going into any consideration of the modification of the principle winch may be stated here. It is according to the • tenor of our general charge.” The trial judge held more favorably in the defendants’ favor than recent decisions require.

The question raised by the seventh point is not before us on this appeal and we are not bound by the court’s answer to it. The answer to the eighth point (24th assignment of error) was in strict accord, with many decided cases. The vital facts, solely as facts, were made by the defendants’ personal testimony. The writing of the articles, the publishing of them in their paper, II Popolo, and that they concerned the prosecutor were distinctly and unqualifiedly admitted by the defendants on the witness stand, as well as by their counsel in argument. To what evidence in the case, as evidence, that the jury might possibly have any doubt in regard to, did this point refer? Surely, not the facts which the defendants furnished. They would not invite a doubt as to their own declarations or veracity, and to instruct the jury to have a reasonable doubt “ upon the evidence ” so given would be a mere play on words. The point carefully refrained from asking instructions upon questions of law, or mixed questions of law or fact, as that ground had been covered in the seventh point, and its answer was in their favor. Taking the facts so made, the writing, publication and innuendo as fixed by the defendants, the only remaining elements were purely questions of law, concerning privilege and malice, and these would not be included within the point as stated. The reasonable doubt to which a defendant is entitled is not one raised by the juror’s personal information, from hearsay or otherwise or from his bias or prejudice, but must grow out of and be founded upon the evidence adduced on the trial. There was no question of credibility of witnesses, conflict of construction of the article, or doubt as to identit}*- of the person meant.

In Theel v. Commonwealth, 22 W. N. C. 58, the defendant was indicted and convicted for distributing a book in violation of a statute. It was a question of law whether it',was published and distributed in violation of law, and the court instructed the jury that as the defendant had admitted the publication, and the advertisements of medicines, drugs, nostrums or apparatus for the cure of secret or venereal diseases, as set out in the indictment, as contrary to the statute, they should find him guilty. On which instruction the defendant was convicted and the Supreme Court affirmed the judgment. In Powell v. Commonwealth, 114 Pa. 265, the court below said: “ As the record now stands, the commission of the offense charged in the indictment is admitted, and it is therefore your duty to render a verdict of guilty.” On appeal this judgment was affirmed. The proper construction is put on the point in the opinion refusing-a new trial: “ If upon a practical confession of guilt the court is to charge the jury in the mode requested, it would, in effect, be an intimation to the jury that they had the power in violation of their sworn duty to find a verdict contrary to the truth. That the jury has the power to abuse its function is true, but that a court should be held to charge it to that effect on the ground that it is the defendants’ right, is in our opinion a proposition not only untenable, but shocking to the moral sense.” In the light of the defendants’ testimony the answer to this point was correct.

The assignments of error are overruled, the judgment is affirmed, and the record remitted to the court below that the sentencé of the court may be carried into effect-