Kinney v. Hosea — 3 Del. 77

Majority

p. 77

JEREMIAH F. KINNEY vs. JOHN HOSEA.

Headnote

Words imputing an indictable offence are actionable per se.

Where such words charge a violation of the laws of another State, the law must be pleaded and proved.

A digest of the laws of another State, published by a private person, is not admissible as evidence of the law.

Quere. — Is the printed statute book, published by authority evidence, without other authentication.

The legal mode of authenticating a State law is by the State seal.

Capias case for slander. Narr. Pleas, not guilty and a special justification.

The declaration set out in various counts, with different averments, a charge of setting fire to the Pennsylvania hall, in Philadelphia, a building belonging to Daniel Neall and adjoining a dwelling house. It charged that whereas, before the uttering the words by defendant, to wit: on 17th May, 1838, “a certain building known as and called the Pennsylvania hall, being the house of a certain Daniel Neall, situate in the city of Philadelphia, in the Commonwealth of Pennsylvania, to wit: at Sussex county aforesaid, was set on fire and burned; which said building was a house then and there adjoining a dwelling house of a certain man called and known by the name of McCalla;” that Hosea intending to charge Kinney with, and cause it to be suspected and believed that he was guilty of the “offences and misconduct” hereinafter mentioned, “and to subject him to the pains and penalties by the laws of this State, and by the laws of the Commonwealth of Pennsylvania aforesaid, made and provided against and inflicted upon the persons guilty thereof, “did, &c., utter and publish,

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&c., these false, scandalous, malicious and defamatory words, namely: “you (meaning, &c.,) put fire to the Pennsylvania hall, or had a hand in it.”

The plaintiff offered in evidence, to prove the law of Pennsylvania against arson, a printed -copy of Purdon’s digest of the Pennsylvania laws.

This was objected to — 1st. Because there being no averment in the declaration that the burning of a house in Pennsylvania was an indictable offence, it could not be proved; and 2d. Because an act of assembly of another State is not proved by the printed laws.

It was answered, that the court would take notice that arson was .a crime; that it was not necessary to aver the law; that the slander was averred in the narr., to have been designed to bring plaintiff in danger of the pains and penalties to bo inflicted by the laws of Pennsylvania for arson, and that Purdon’s digest was an authorised edition of the laws of Pennsylvania; and, therefore, sufficient evidence of the law of that State. (Stark. Stand. 19; 14 Johns. Rep. 223 ; 1 Phil. Ev. 288, 306.)

By the Court:

Plaintiff offers Purdon’s digest to prove the law of Pennsylvania on the subject of burning houses, which is objected to — 1st. Because it is not proper evidence of the law. 2d. That, if it were, the plaintiff would not be permitted to prove the law, because it is not averred in the declaration.

The law of slander is now well settled. Words to be actionable in themselves must impute a crime or misdemeanor, which would subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment. (2 Leigh’s N. P. 1350, n. 1351; Stark. Stand. 7; ib. 8, n.; 5 Johns. Rep. 188 ; 1 Harr. ) Rep. 337.) Where the words are uttered in relation to acts prohibited by our laws, it is not necessary to aver the law; the court will • take notice of it. But where the words charge an act not violating our lawrs, but criminal only as against the laws of another State, such : law's should be averred, or referred to in such manner as to show that j the words charge an offence punishable criminally by the laws of Í that State. The form of such averment is not important; it is usual-j ly made by way of inducement. ( 2 Mass. Rep. 84 ; 8 ib. 99; 1 ib. 104; Hardin’s Rep. 165; 4 Bibb 73 ; 2 Marsh. 609 ; 1 Stark. Ev. 197, n.)

The question then is whether the words charged in this narr. impute an offence which is shown by any averment to be criminally punishable in Pennsylvania. The averment is, that it was designed

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to subject Kinney to the •pains and penalties of the laws of Pennsylvania against such offences and misconduct. Do the terms pains and penalties import corporal punishment as for crime'? The word penalty has no such force. The question rests then on the force of the word pains, as connected with the word penalties. The court have a strong inclination of opinion on this subject; but think it unnecessary now to decide it; because — 2d. We are clearly of opinion that Purdon’s digest is not evidence of the laws of Pennsylvania. The constitution of the United States declares that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State; and provides that Congress may by general laws, prescribe the manner in which such acts, &c., shall be proved, and the effect thereof. By an act of Congress passed May 25th 1790, it is provided that “the acts of the Legislatures of the several States shall be authenticated, by having the seal of their respective States affixed thereto.” It has been held in the United States courts that printed statute books, not authenticated by the seal ‘of the State, are not admissible evidence in any other State.. (Craig vs. Brown, 1 Peters Rep. 352 .) And this decision has been followed in some of the States. ( 2 Hawks. 441 .) In Pennsylvania the acts published by the State printers of other States, or purporting to be, are admissible in evidence. ( 1 Dallas 462 ; 6 Bin. Rep. 321 .) So in Massachusetts and Vermont. ( 3 Pick. Rep. 293 ; 1 Chip. Rep. 303 .) But acts published by a private printer have been ruled out in Connecticut. ( 2 Root 250 .) In State vs. Stade, (1. Chip. Rep. 303,) the court said: “if such act be proved agreeably to the provisions of the act of Congress, the courts are bound to admit it — they may admit it, although not so proved.” In practice, public statutes, published by authority jn other States, are generally read without objection, in the several State courts. (1 Stark. Ev. 196, n. 2.)

Without deciding that we would not in any case receive the printed volume of laws of another State, published under the authority of the Legislature and by the public printer, with the certificate of the Secretary of State, or other authentication not strictly according to the act of Congress, it is sufficient now to say, that a mere digest of the laws published by a private person, is not legal evidence of the statute law of another State,^[1]

The plaintiff suffered a nonsuit.

(a) (a) By the act of assembly of February 16, 1843, the printed acts of other States and Territories, received at the State library of this State, are made evidence, without further authentication.