Commonwealth v. Swallow , 8 Pa. Super. 539 ( 1898 )

Opinion by

Smith, J.,

The defendant has been convicted of a libel on the superintendent of public grounds and buildings, and the state officers who are by law commissioners of public grounds and buildings, in their official character as such. The alleged libel was contained in an article published in a newspaper of which the defendant was editor.

In defense, it is contended that this publication “ does not libel or charge any criminal act upon any of the individuals alleged to have been libeled; ” that the indictment “ does not charge any indictable offense,” and is also defective in the manner of setting forth the alleged libel; and, further, that the publication relates to the official conduct of officers or men in public capacity, and was not maliciously or negligently made, and is therefore privileged under the constitutional provision on the subject. The case thus involves questions of the highest importance ; on the one hand, the right of a public officer to protection to his reputation, and, on the other, the right of the citizen to investigate the official conduct of men acting in a public capacity, and to publish his conclusions. These rights are alike secured by constitutional guaranty.

The importance of maintaining freedom of discussion, through an untrammeled press, in all matters affecting the public, has been steadily recognized since the independence of the commonwealth was declared. The first constitution of the state, adopted September 28, 1776, asserted “that the people have a right to freedom of speech, and of writing, and publishing their sentiments,” and further declared that “ the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government.” These provisions were again incorporated in the organic law, with important additions, by the following clause of the constitutions of 1790 and 1838: “ The printing presses shall be free to any person who undertakes to examine the proceedings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse' of that liberty.. In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence ; and in all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.” Thus, while held to a just responsibility for abuse of the liberty granted, the press was freed from all antecedent restraint by this prohibition of censorship; and on an indictment for an alleged abuse of liberty, in publications relating to official conduct, etc., the truth of the matters published formed a justification.

The constitution of 1873 retained these provisions relating to the freedom of the press, with their scope enlarged and with an important modification of the measure of defense on an indictment for libel. Instead of requiring the truth to be shown, by evidence as broad as the defamatory matter, the publication is excused by proof that it was proper for public information and was not maliciously or negligently made. Section 7 of the declaration of rights, — the existing constitutional provision on the subject, — is as follows: “ The printing press shall be free to every person who may undertake to examine the proceedings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. 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 to 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 in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.”

While thus securing liberty to the press, the constitution has also steadily aimed at guarding against its abuse. Among the rights declared by the constitutions of 1790, 1838 and 1873 to be “mher’ent and indefeasible,” is that of protecting reputation. .''~ThiUnghts"M 'the defendant and of the officers alleged to have been libeled in this case, therefore, rest on the same constitutional ground. They demand an exact balance of the scales of justice, that security may be given against unfounded aspersions, and that the honest investigation of official conduct may not be prevented or unduly restrained by fear of unjust prosecution.

The criminal code of March 31, 1860, P. L. 382, section 24, provides for the punishment of libel, and thus defines the offense:” “If any person shall write, print, publish or exhibit any malicious or defamatory libel, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt or ridicule, such person shall be guilty of a misdemeanor.”

Under the constitutional and statutory provisions we have cited, the issue in the case before us presents the following questions:

1. Was the publication made by the defendant, or by his pro'curement?

2. Does it refer to one or more of the persons named in the indictment as libeled?

3. Is it libelous ?

A negative answer to any of these questions is conclusive in favor of the defendant. An affirmative answer to all is a prima facie determination against him, and leaves his defense to rest on the further questions:

4. Does the publication relate to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information ? If so,

5. Was it maliciously or negligently made?

And it will be justified only by evidence giving an affirmative answer to the fourth question and a negative answer to the fifth.

The publication is admitted, and, beyond question, it is libelous with respect to the persons to whom it may be found to refer. The defendant denies that it refers, or was intended to refer, to the officials whom he is charged with having libeled, or to any of them. His contention is that it was designed as an exposure of a vicious system, and not as an arraignment of the individuals who conducted the system; and, further, that the evidence shows an absence of malice and negligence that protects him against conviction, even should the publication be deemed libelous as to the persons named in the indictment.

Section 7 of the declaration of rights, in effect, places “papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information,” substantially on the footing of privileged communications. This privilege is derived from the absence of malice and negligence in the publication of such papers. Malice, in the legal sense, is implied from the publication of any false and defamatory matter, though the person making the publication may not be moved by express or actual malice. To give .immunity to such a publication, on the ground of privilege, there must be neither malice nor negligence in making it. It must be made on a proper occasion, from a proper motive, in a proper manner, and upon probable cause for belief in its truth: Neeb v. Hope, 111 Pa. 145; Briggs v. Garrett, 111 Pa. 404; Conroy v. Times, 139 Pa. 334; Jackson v. Times, 152 Pa. 406, 416. An inquiry into the official conduct of officers or men in a public capacity, or into any other matter proper for public investigation or information, presents a proper occasion. A proper motive and manner exclude malice, both in purpose and phrase. Probable cause for belief excludes negligence. This probable cause is judicially defined as “ A reasonable ground of suspicion, supported by circumstances sufficient to warrant a cautious man in believing that the party is guilty ” of the conduct imputed to him: Munns v. Dupont, 3 Wash. C. C. Rep. 31; Winebiddle v. Porterfield, 9 Pa. 137; Chapman v. Calder, 14 Pa. 365; Smith v. Ege, 52 Pa. 419; Coates v. Wallace, 4 Pa. Superior Ct. 253. And this cause must exist at the time of making the publication.

It is obvious that the probable cause that will warrant belief must be found in circumstances of adequate probative force, lying within personal knowledge, or information derived from sources of such a character as to lead a reasonably prudent man to regard it as trustworthy. Mere rumor is not sufficient; nor is it enough that the matters in question have become the subject of general comment or even of widespread belief. To draw illustrations from the case before us, the newspaper press cannot be regarded as, of itself, an adequate source of information. Neither are statements received at second or third hand, or from persons having no direct knowledge of the matter, such as those respecting the alleged presentation of a clock to one of the officials named, and much of the alleged information relating to alterations, improvements, furnishings and decorations in the public buddings, the alterations of Grace Church, the free barber shop, and the rose house. We are far from saying that nothing short of the best evidence can afford a reasonable ground of belief. On this question, no hard and fast line can well be drawn. Yet mere hearsay, in whatever guise, however plausible in aspect, broad in volume, or positive in form, must be pronounced a totally inadequate foundation. The repetition and circulation of a defamatory charge cannot be recognized as a ground for belief in its truth.

The publication in the present case was made on a proper occasion, and we cannot say that it was not made from a proper motive or in a proper manner. The official action of public officers is at all times a proper subject for inquiry by the citizen and for information to the public. But even when investigation may reveal conduct that justly deserves censure, a publication on the subject is not to be made a vehicle for unfounded charges or malicious detraction. The truth is not to be distorted in order to furnish a basis for denunciation or invective. Dereliction in public duty is not to be redressed by calumny. On the other hand, an honest and capable officer has nothing to fear from the fullest investigation into his conduct,when fairly made, if the purpose of making the inquiry be the ascertainment of truth alone. In the discharge of his duties he is to be governed strictly by law; and the people, whose servant he is, have a right to examine into the administration of his office. To obstruct or hamper such examination particularly through the forms of law, is to discourage the inquiry which the people have a right to make, and encourage unfaithfulness in public trusts; in effect, to place the servant above his master. Least of all should this be tolerated in a court of justice.

The indictment contains two counts. The first charges a libel, contained in a paragraph designated as “ 3.” The second charges the same libel, with other libels contained in a paragraph designated as “5.” These paragraphs are as follows:

“3. That new metal furnishings have been paid for by the state, but old ones in use by the state carried into the state house cellar, cleaned and returned, were made to personate the new ones paid for.”

“5. That in the purchase of materials and labor, for making additions, alterations, repairs and refurnishing the capitol buildings, and cellars and grounds, also for the executive mansion, and now .for Grace Church, the state has lost many thousands of dollars as a result of an unfair system of competitive bidding. In other words, that the cost to the state has been two, three, four, and as high as eight times in some instances, as much as it should have been, and that not all of this money went to the persons furnishing the materials and labor, and further that at least some of the board of public grounds and buildings custodians have guilty knowledge of this excessive cost.”

No evidence was offered to justify the application of paragraph “ 3 ” to any of the officials named, and the defendant, in his argument, alleges that the paragraph does not refer to any of those officials, and was not so intended, but relates to matters that occurred before the positions held by them with respect to public grounds and buildings were created. As to - paragraph “ 5,” the defendant alleges that it was not aimed at the members of the board of public grounds and buildings, but “at a class of persons characterized as their custodians; ” and he further contends that to interpret it as charging a conspiracy to defraud the state is “an impossible construction of language.” The evidence offered by the defendant for the most part apparently aimed at showing tlie absence of malice and negligence, by exhibiting probable cause for believing the matters embraced in this paragraph; and nine of the specifications of error are to the rejection of this evidence.

The offer embraced in the third specification lacks the precision that should characterize an offer of evidence, “ The reasons which led to the publication, the state of the defendant’s information, and the facts with which he was made acquainted,” might be fully shown, without disclosing anything tending to prove that the publication was not maliciously or negligently made. An offer designed to show this should state the source of the defendant’s information, and the specific facts communicated to him, that the materiality of the evidence may appear. Unless the information upon which the publication -was añade is such as to afford probable cause for belief iai its truth, the presumption of malice or negligence remains. In deciding on the character of the publication, it anust certaiarly be judged as a whole, since the actual aneaning and application of aaiy passage may depend largely on the coaitext. The defendant was therefore entitled to have the entire article given in evidence. His complaint of its exclusion, however, is entirely uaifounded. The notes of evidence printed iar the appellant’s paper-book show that it was introduced by the commonwealth, and paragraphs 3 and 5 offered iar evidence; that the defendant’s counsel anoved the reading of the whole; that the trial judge ruled that “ the whole article anust go in evidence; ” that the counsel for the coanmonwealth replied: “The whole article is before the jury for their use, and will be expected to go out with the juay; ” that the trial judge then said: “ The other side can read it now if they choose; they caar read the whole article;” and' that counsel for the defendant thereupon read the whole article to the jury. It was laid before the jury without restriction; the trial judge submitting to them the question whether paragraphs 3 and 5 charged the prosecutors with fraud and corruption, and adding: “You have to determine that, as I say, from the article itself, from the paragraphs, from the article in which' those paragraphs appeared, and from the testimony.” Twice previously, iai the chaa’ge, he had said to the jury, “You will have the paper out with you,” and there is no allegation that it was not sent out with them.

As to the fourth specification, it is sufficient to say that the article was in no sense a privileged communication addressed to the legislative assembly for the correction of an abuse. While in form a suggestion that the legislature .adopt a proposed method of investigation, it was in fact, a mere publication in the defendant’s newspaper, and, so far as shown, was not communicated to the legislature. It could derive no privilege from its form alone. The only basis for the claim of privilege is that it relates to the official conduct of men in public capacity, and was therefore made on a- proper occasion; that it was made from a proper motive, in a proper manner, and with probable cause for belief in its truth, and therefore not maliciously or negligently. The article is not evidence of the circumstances that led the defendant to write it, and those circumstances are material only so far as they present ground for belief in its truth.

The fifth to the eleventh specifications, inclusive, may be considered together. While, in some respects, the offers lack precision, the apparent purpose of the evidence offered was to show probable cause for belief that -the matters contained in paragraph 5 were true. The ground of its rejection appears to have been that it was not coextensive with the allegations ; that the officers named were charged by the defendant with fraud and corruption, while the evidence offered tended only to show extravagance. This view is entirely too narrow. True, the indictment avers that the defendant meant, in paragraph 3, to charge the officers named with defrauding the state by corruptly approving a bill for metal furnishings never received, and, in paragraph 5, to charge them with conspiring to pay certain persons for labor and materials from two to eight times as much as the price for which other bidders were willing to furnish the same, with intent to defraud the state by corruptly misappropriating the public moneys to themselves and others. But the commonwealth cannot, in the absence of direct accusation, arbitrarily fix the quantum of detraction implied or intended in the publication, and demand a corresponding measure of proof in defense. Whether the charge intended was corruption, extravagance, or merely carelessness, in the expenditure of public money by the superintendent or the commissioners of public grounds and buildings, is to be determined by the jury, from the natural meaning of the language and the extrinsic matters offered in evidence to indicate the sense in which it was used. Further than this, proof of extravagance has a very obvious bearing on the question of fraud and corruption. Extravagance in the expenditure of public money, while not of itself necessarily corrupt, has such an obvious association with fraud as to form one of the most significant circumstances pointing to corruption, particularly when a method of expenditure not conforming to ■statutory provisions is employed, as the defendant here alleges with respect to certain items. Misappropriation of public money is usually accomplished through extravagant expenditures, or the evasion of legal restrictions, rather than by direct theft. Even in the absence of corruption, the mere reckless expenditure of public money is odious to the people, and language imputing no more than this may fall within the statutory definition of libel by exposing to public hatred, contempt or ridicule. A publication may be libelous, though it charge no criminal act. Giving to the language employed in the present case the meaning assigned to it by the commonwealth, it was still a question for the jury whether this meaning was intended by the defendant. This was their exclusive province under the constitutional mandate that “ In all indictments for libels, the jury shall have the right to determine the law and the facts under the direction of the court, as in other cases.” All evidence fairly tending to show what the defendant intended, by the language employed, or to show that the charge actually intended was not maliciously or negligently made, was proper for their consideration. Proof of extravagance is unquestionably evidence of this nature ; its sufficiency, as a ground for the inference of corruption, depending largely on the attending circumstances. In the admission of testimony bearing on the questions of malice, negligence and intent, when the absence of these is an essential element of the defense on an indictment for libel, a liberal latitude should be permitted, and nothing reasonably calculated to show a tenable ground of defense should be excluded through technical narrowness in construing or applying the rules of evidence. It is proper to add that no implication of fraud or corruption necessarily arises from the matters referred to in the eighth specification. It cannot be contended that the state is debarred from using a desirable article, merely because it is the subject of a patent controlled by one person and therefore beyond the field of competitive bidding. Here, as in other purchases, all the circumstances, including that of cost, and of comparative value, are to be considered in determining whether the evidence is such as to justify the inference of fraud or even of extravagance.

The twelfth specification is without merit. The evidence embraced in it was clearly competent for the purpose of meeting the testimony of the defendant on the subject. It may, indeed, have been unnecessary, since the defendant’s testimony failed to show his possession of information affording probable cause for belief; but it was not for that reason inadmissible. The questions involved in the thirteenth and fourteenth specifications were for the jury, and were submitted with adequate instructions. The contention that paragraph three cannot be understood as referring to the superintendent or the commissioners of public grounds and buildings, for the reason that it relates to a transaction prior to the creation of those offices, is without foundation. There is nothing in the paragraph to indicate the date of the occurrence. That the matter charged is impossible, is no defense: Kennedy v. Gifford, 19 Wend. 296. To charge the murder of a person who, at the time, is living, is actionable: Eckart v. Wilson, 10 S. & R. 44. The point embraced in the fifteenth specification was properly refused. Malice and negligence are in law presumed from a defamatory publication. When the defense is based on their absence, the burden of proving this is on the defendant. The commonwealth may, in its discretion, offer evidence in rebuttal.

Whether, upon all the evidence, the fact that the publication was not maliciously or negligently made is established to the satisfaction of the jury, is for them to determine.

There was no error in not reading to the jury the points which were refused; on the contrary, this is the better practice. It is the duty of the trial judge properly to instruct the jury, but this does not require him to read to them instructions asked for which he declines to give. It contributes to clearness, and to freedom from confusion and the danger of misapprehension, for the jury to hear only the directions they are to regard. In Com. v. Clark, 3 Pa. Superior Ct. 141, the practice here followed by the trial judge was approved by this court, upon a full consideration of the question, and a review of the authorities, in an opinion by our late brother Wickham:. It has been sustained by the Supreme Court, in the case of Woeckner v. Motor, 187 Pa. 206.

What we have already said applies to the portions of the general charge assigned for error, so far as these relate to the questions we have considered. Nothing in the assignments requires further discussion except the first and second specifications.

While a judgment quashing an indictment may be reviewed on error, it is questionable, at least, whether an exception lies to a refusal to quash. This point seems not to have been decided by the courts of our own state. In Massachusetts and New York, however, it has been decided that at common law a motion to quash is addressed to the sound discretion of the court, and that it is discretionary to grant it, or to refuse, and leave the defendant to his demurrer or motion in arrest of judgment: Com. v. Eastman, 1 Cush. 189; People v. Eckford, 7 Cowen, 535; People v. Davis, 56 N. Y. 95. In the present case the motion to quash and the motion in arrest are based on substantially the same grounds. These will be considered on the latter motion, since a decision .thereon will dispose of the questions involved in the former. The only reasons, however, which appear to require discussion are (1) that the indictment does not charge the defendant with any indictable offense; (2) that it does not sufficiently connect the prosecutors with the matters alleged in the publication ; (3) that it charges an offense not laid in the information. Though the second reason is not stated with the precision that should be observed, we may regard it as in legal effect included in the first.

When language of the character described in the statute is applied to a person by name, there can be no question of its meaning or application. In such case it is only necessary, in an indictment, to identify the prosecutor as the person named by an averment that the language was published of and concerning him. But where the language does not necessarily tend to blacken character, or expose to public hatred, contempt or ridicule, or where the person to whom it refers is not named, it becomes necessary to so frame the indictment as to show the defamatory meaning of the language and its application to the prosecutor.

In the present case the publication, in the natural meaning of the language employed, charges that a wrong has been done to the state. But no person being named as guilty of this, it is necessary that the indictment should so connect the officials named therein with the alleged wrong as to indicate distinctly the application of the language to them. The defendant argues that this has not been done; that the indictment fails to set forth, by proper averments, the matters necessary to show that those officials are the persons to whom the publication refers, .and that by reason thereof it falls short of averring, with the requisite distinctness, that the publication is libelous as to them, and therefore charges him with no offense. The question thus raised is to be determined by the application of established principles of pleading.

When the publication does not, of itself, bear the defamatory meaning ascribed to it, or indicate the person at whom it is aimed, but these depend on something extrinsic to it, the averments employed in pleading to show the import contended for, or the person to whom it refers, naturally fall into an orderly arrangement in three divisions, each having a distinct office and technical designation. The necessary extrinsic matters are stated in a prefatory way, and are designated as the inducement, or averment. Next follows a statement of the matters necessary to connect the language with the extrinsic circumstances, and to show that it was published of and concerning the person mentioned or the matters set forth in the inducement. This is designated as the colloquium. Its scope and sufficiency must depend on the character of the language, the nature of the extrinsic facts embraced in the inducement, and the readiness with which the alleged connection between them can be shown. Lastly, the defamatory meaning which, it is contended, attaches to the language by reason of the antecedent matters averred, is set forth. This averment respecting the interpretation is designated as the innuendo. It is merely explanatory of the preceding averments, and cannot supply any deficiency in those. It cannot enlarge the natural meaning of the words employed, or fix on them a strained or artificial import; it has no other purpose than to specify the defamatory sense imputed to them. When the publication is, per se, libelous of a person named, neither inducement, colloquium nor innuendo, as here described, are necessary; they become requisite only when the person referred to is not clearly designated, or when the language is ambiguous, or susceptible of more than one meaning, or while it is apparently inoffensive an obnoxious meaning may arise from the extrinsic facts, and it becomes defamatory by reason of the specific sense in which it is used. Briefly, when the publication is not directly.defamatory of any person, the pleading must indicate its meaning, and to whom it refers; and for this purpose the essentials of a count are: (1) An inducement setting forth sufficiently the extraneous matters which, it is alleged, give the language the meaning or application contended for; (2) an adequate colloquium, showing this meaning or application; (3) an innuendo declaratory of the sense in which it is alleged the language was used. These, as a whole, must contain everything necessary to make the publication intelligible in the sense thus imputed to it, and to show its defamatory character with respect to the person to whom it is alleged to refer. Whether, in the light of the inducement and colloquium, the language will fairly bear the meaning ascribed to it by the innuendo, — that is to say, whether it is to be pronounced, in law, libelous, — is to be determined by the court; whether this meaning was intended by the defendant, is to be determined by the jury upon all the evidence.

These principles apply alike to libel and slander, and to criminal prosecutions and civil actions. They are discussed and illustrated in numerous cases decided by the courts of our own and other states. Many of these are collected in 1 Am. Lead. Cas. 138, in the notes to Van Vechten v. Hopkins, 5 Johns. 211. Among Pennsylvania authorities are Bornman v. Boyer, 3 Binney, 515; Thompson v. Lusk, 2 Watts, 17; Shultz v. Chambers, 8 Watts, 300; Gosling v. Morgan, 32 Pa. 273; Herst v. Borbidge, 57 Pa. 62; Stitzell v. Reynolds, 59 Pa. 488; Com. v. Keenan, 67 Pa. 203; Collins v. Pub. Co., 152 Pa. 187.

In each count of the indictment before us, the inducement sets forth the official character of the persons charged to have been libeled, with their duties and the mode in which the performance of these is by law directed. The innuendo sets forth the defamatory meaning which, it asserts, was intended by the defendant in the language complained of. No objection is made or could well be made to the sufficiency of either. The error alleged is thus narrowed down to the sufficiency of the colloquia, and to the charge in the second count not included in the information.

Briefly, in the first count, the colloquium sets forth the language as composed and published of and concerning the officials named, and of and concerning the superintendent of public grounds and buildings, as such, and of and concerning him in the performance of his official duties, and of and concerning the officials who then and there constituted the board of commissioners of public grounds and buildings. In the second count it sets forth the language as composed and published of and concerning the same officials, as the board of commissioners and the superintendent of public grounds and buildings, and of and concerning them in the premises.

If we still held to the technical strictness in pleading which was formerly enforced, it might not be difficult to demonstrate, by the hair-splitting standard that once prevailed, the insufficiency of these averments in not elaborating, in formal and artificial phrase, matters necessarily implied from the natural and obvious relation between the inducement and the publication. But, as was said in Com. v. Keenan, 67 Pa. 203, “ It is evident from the current both of decision and legislation that criminal pleading is no longer the technical thing it was, and that the courts should look more to substantial justice than to artificial nicety.” In Sherban v. Com., 8 Watts, 212, quoted with approval in Com. v. Keenan, the rule was laid down that “ indictments require only the same certainty as declarations, namely, certainty to a certain intent in general, and not certainty in every particular, as is required in pleading an estoppel: Co. Lit. 303; Rex v. Lawley, 2 Str. 904; 1 Chit. Cr. Law, 169. It is a rule that that Mrhich is apparent to the court, and appears from a necessary implication, need not be averred: 4 Bac. Abr. 322. It is sufficient in indictments that the charge be stated with so much certainty that the defendant may know what he is called on to answer, and that the court may know how to render the prpper judgment thereon. Overnice exceptions are not to be encouraged, especially in cases that do not touch the life of the defendant: Chit. Cr. Law, 170, 221; 2 Hale, 193.” This view was approved also in Com. v. Commercial Bank, 28 Pa. 391, and in Election Cases, 65 Pa. 20. In the former case it was said: “ It is not necessary that the acts constituting the offense be particularly described with all their circumstances, if it can be distinctly defined without this, and much of the particularity of pleading comes from an abundant caution, rather than from the requirements of the law; ” and the language of Chief Justice Gibson in Hartmann v. Com., 5 Pa. 60, and in Updegraff v. Com., 6 S. & R. 5, is thus referred to: “Precision in the description must be sufficient to ‘ mark the limits of the accusation and fix the proof of it.’ The purpose to be.aimed at in describing the offense is to define the act and the criminal element contained in it, so as to point the proof and the defense, and furnish reasonable security against the repetition of the charge.” In Com. v. Frey, 50 Pa. 245, it was said, “By the criminal procedure act of 1860, the extreme niceties and refined technicalities which prevailed in relation to indictments are abolished, and an indictment is now little more than a simple statement of the offense, such as good sense and regard for the accused alone would suggest.”

The act of March 31, 1860, section 11; provides that “every indictment shall be deemed and adjudged sufficient and good in law, which charges the crime substantially in the language of the act of assembly prohibiting the crime, and prescribing the punishment if any such there be, or, if at common law, so plainly that the nature of the offense charged may be easily understood by the jury.” This provision is to be construed with reference to the relaxation of the rules of pleading, in relation to technical niceties, which has long obtained in this state. The averments that enter into an indictment for libel are such that, literally, the crime cannot be charged, even substantially, in the language of section 24 of the act of 1860, supra. That section, however, merely gives statutory form to the common-law definition of libel; hence with respect to pleading, the indictment may properly be regarded as charging the offense at common law. It is therefore sufficient “if it charges the crime so plainly that the nature of the offense charged may be easily understood by the jury.”

In the present case, the publication alleges, directly or by plain inference, official dereliction in certain matters lying clearly and exclusively within the scope of the duties imposed by law on the superintendent and commissioners of public grounds and buildings, as these are set forth in the inducement. As the persons at whose dereliction it is aimed, it points unmistakably to the officials upon whom the law places all responsibility in the premises. Hence any violation of duty which it alleges is necessarily alleged of and concerning the persons named in the inducement as the superintendent and commissioners o£ public grounds and buildings, in their official character. This is an implication so manifest that it is impossible to understand the publication in any other sense. The averment in the colloquia, therefore, that the language was composed and published of and concerning the superintendent and commissioners of public grounds and buildings, as such, adequately exhibits the connection between the inducement and the publication; for the officers named, in the inducement, in their official character, and they alone, were responsible for the matters charged. The crime of which the defendant is accused is, unquestionably, stated “so plaiffiy that the nature of the offense charged may easily be understood by the jury.” In the manner of charging it there is clearly certainty to a certain intent in general, which is all that is required in indictments. The reference to tire superintendent and commissioners of public grounds and buildings, as the persons at whom the publication is aimed, “ is apparent to the court, and appears from a necessary implication.” It is obvious, also, that '“the charge is stated with so much certainty that the defendant may know what he is called on to answer, and that the court may know how to render the proper judgment thereon.’’ Thus, testing the indictment by the standard arising from the act of 1860, and the authorities cited, it exhibits no such structural weakness as would make a judgment on it erroneous, but must be “ adjudged sufficient and good in law.”

The complaint of an mrwarranted connection between paragraphs 3 and 5, in the second count, through the omission of the intervening paragraph 4, does not appear well founded? While there seems no good reason for repeating in this count the charge of libel in paragraph 3 already contained in the first count, the two paragraphs are separately set forth, and with numerical designations indicating a hiatus rather than a connection between them. Paragraph 4 is not found in the information, and there is no allegation that it refers to any of the officials alleged to have been libeled by paragraphs 3 and 5. Hence it can have no proper place in the indictment, nor is any explanation of its absence necessary.

A further objection to the second count is that paragraph 5 was not included in the information. In setting forth this paragraph, the indictment charges a libel on three persons not named in the information, by a publication not set forth in it. As to any defamatory matter contained in paragraph 5, there was no preliminary hearing or binding over. We do not regard the terms of the recognizance, binding the defendant to answer the charge contained in the information “ and such other charges as shall be preferred against him ” as enlarging its obligation to the extent contended for by the commonwealth. Giving it this effect, a person may be held to answer the charge of an assault on A, and thereupon be required to meet an indictment for the murder of B. The conditions under which an indictment may properly be found without a preliminary hearing are well settled : Green v. Com., 126 Pa. 531. Among these is the action of the district attorney in laying it before the grand jury, on his official responsibility, with leave of the court. It appearing in the present case that the indictment, as found, was sent to tire grand juiy by the district attorney, with the express leave of the court (a fact undenied by the defendant) the inclusion of paragraph 5 affords no ground for arrest of judgment. It was not shown or alleged that this surprised or prejudiced the defendant. The paragraph was part of the general subject of the article forming the basis of the prosecution, and it was quite reasonable to expect that all parts of it relating to the persons referred to might be resorted to on the trial of any action growing out of it. The first and second specifications are overruled.

The principles upon which the questions arising in this case are to be determined, with their application, have been so fully discussed that further consideration, in detail, of the assignment of errors, is unnecessary. What has been said sufficiently indicates our view of the matters assigned for error and disposes of every material point embraced in the twenty-four specifications, without a separate ruling on each.

The judgment is reversed and a new trial granted.