People v. Stephens

Sharpstein, J. — Appellant was tried and convicted of libel, upon an information which alleged that he published of and concerning one Horace Bell that “ it was a common report at the time his wife went crazy that it was because that just subsequent to confinement she detected him in flagrante delictu with a female negro servant.”

In addition to. the plea of not guilty, the defendant pleaded once in jeopardy and former acquittal. On the trial the defendant offered to prove by competent evidence that he had been indicted, tried, and acquitted upon a charge of libel based upon the publication of the same article upon which the information in this case is based. To the introduction of such evidence the prosecution objected, on the ground that it was incompetent, immaterial, and irrelevant. The objection was sustained and the defendant excepted.

The question presented by this exception is, whether there may be as many prosecutions for libel maintained upon a single article published in a single issue of a newspaper as there are false and defamatory statements concerning a single individual in such article. So far as we know, this question has not heretofore arisen or been passed upon by any court in a case of libel. “No person shall be twice put in jeopardy for the same offense,” is the language of the constitution. The Penal Code provides that “no person can be subjected to a second prosecution for a public offense for which [430]he has been prosecuted and convicted or acquitted.” (Pen. Code, sec. 687.)

The only question in this case is, whether the second prosecution is for the same offense as the first. If so, it cannot be maintained. The first prosecution was for a libel contained in an article published by the defendant in a newspaper. The second prosecution is for a libel contained in the same article and published in the same issue of the same newspaper as the first. The words alleged to be defamatory are not the same in both in-formations. If they were, the case would be a plain one. But the publication in both cases was one and the same act. “The act which is the essential element in the wrongs, slander and libel, is a wrongful publication of language.” (Townshend on Slander and Libel, 121.)

The essential element of the offense was the same act in both cases. In Regina v. Erlington, 9 Cox C. C. 86, Cockburn, C. J., said: “It is a fundamental rule of law that out of the same facts a series of charges shall not be preferred.”