By the Court.
Lumpkin, J.
delivering the opinion.
[1.] Did the indictment contain a sufficient averment of the publication of the libel % It charges that David Giles, the defendant, on the 6th day of July, 1847, did maliciously and falsely “ utter and publish, that is to say, did then and there write, and fasten upon the side of a tree in a public place, where it could [282]*282be there read, the following malicious defamation, in writing, of and concerning one William Thompson (the prosecutor,) and others,” &c. It is objected, that it should have been alleged that the libel was read. Was this necessary? If so, then the fact that it was read should have been proven also. We are of opinion that neither was requisite to constitute the offence.
Actual communication of the contents of a libel, as by singing or reading, is one mode of publication; but it is neither the only nor the usual mode. The common method is by the posting up of the paper, written or printed, or its delivery, and no question is ever asked as to whether it was read or not. Jj We say of an author that he has published a book, when he has given its contents to the world; and we speak of Úm publication of a will, without meaning to denote that the contents of the instrument have been actually communicated. So it is with a libel./ Publication, says Best, J. in The Sing vs. Sir Francis Burdett, is nothing more than doing the last act for the accomplishment of the mischief intended by it. The moment a man delivers a libel from his hands, his control over it is gone; he has shot his arrow and it does not depend upon him whether it hits the mark or not. ^ There is an end of the locus penitentice — his offence is complete — all that depends upon him is consummated; and from that moment, upon every principle of common sense, he is liable to be called upon to answer for his act.
So then, the mere delivering over, or parting with the libel, is a publication. There need be no averment or proof of the actual communication of the contents of the paper. Lord Colee says, a libel may be published, traditione, by delivery, (5 Reports, 126, a;) and this definition is adopted by Chief Baron Comyns, in his Digest, title, Publication, b. 1. If a letter containing a libel is sent sealed to another, or to the party himself against whom it is made, or is addressed through the post office, it is a sufficient publication. 1 Saund. Rep. 132, notes.
If these propositions be tenable, and I doubt not they are law, then the case before us is free from doubt. I would only add, upon this branch of the case, that Chief Justice DeGrey, in delivering the opinion of the Court in Baldwin vs. Elphinston, (2 Wm. Black. Rep. 1037,) says, there are in Rastall’s Entr. tit. Action sur le Case, 13 a, two instances of constructive publications, [283]*283by delivering letters to A and B, and, by fixing them on the door of St. Paul’s Church.
[2.] Many minute and ingenious exceptions are taken to the indictment, for want of proper inuendos to give certainty to the libel. To all of which our answer generally is, that the office of the inuendo is to point out and refer to matter already expressed ; to explain the meaning of the publication, when it is obscure, and to designate the persons alleged to have been libelled, when they are alluded to in covert and ambiguous terms. But where the paper itself points out, with sufficient clearness, the persons of or concerning whom it is written, and likewise the purpose for which it was written, the office of the inuendo is superseded— no explanation is necessary. And such is the character of this publication. It is its own interpreter.'
[3.] It is argued that it is not libelous to charge a person with being a drunkard. At Common Law any publication is a libel, the tendency of which is to degrade and injure another person, or to bring him into contempt, hatred or ridicule; or which accuses him of a crime punishable by law, or of an act odious and disgraceful in society; and by the Penal Code of this State, a libel is defined to be a malicious defamation, expressed either by printing or writing, or signs, pictures, d!nd the like, tending to blacken the memory of one who is dead, or the honesty, virtue, integrity or reputation of one who is alive, and thereby expose him or her to public hatred, contempt or ridicule.
I ask, is not this publication well calculated to produce these results 1 I never yet saw the man who liked to be called or considered a sot or drunkard. Noah, the first drunken man, became thereby an object of ridicule to his own son. It was the third part of the then male world that manifested this mockery for this habit, and the other two-thirds did but conceal it. True, Ham, as a son, could not justify his unfilial conduct, and he and his descendants, to the present generation, have been deservedly punished for this contempt of his father. This historical fact serves, nevertheless, to illustrate the effect of this habit. But this paper did not stop with imputing excessive debauchery to old man Thompson; it alleges farther, that he was decoyed into his cups for the purpose of being made a cuckold! If this charge would not expose him to universal scorn and contempt, I know not what would, not only with the admirers of Byron — and their name is [284]*284legion — and such as would, rather be the hero of Don Juan, than the author of the English Bards and Scotch Reviewers, but likewise with the most elevated and worthy of mankind. But the enormity of this libel stops not here. As if to involve its victim in the lowest depths of infamy and disgrace, he is accused, not only of being a tory in the war of the Revolution, but with having been punished in the most ignominious manner for the robberies which he then committed. When the name of Washington shall grow old and cold to the ear of the patriot; when it shall be synonymous with that of Arnold; when the poles of the earth shall be swung round ninety degrees, to a coincidence with the equator,” then, and not before, will it cease to be a libel to call a man a plundering tory of the Revolution!
[4.] The Court charged" the Jury, that if they believed the libel was in the handwriting of the defendant — was afterwards found by the side of a public road, and read — the presumption was, that it was published by him, or by his authority ; that if it was not so published, it was incumbent on the defendant to show how it came out of his possession; and to these instructions the defendant, by his counsel, excepted. Suffice it to say, that the presiding Judge has employed, in this portion of his charge, the very language almost of thelaooks.
[5.] A person who appears once to have written a libel, which is afterwards published, will be considered as the maker of it, unless he rebut the presumption of law, by proving another to be the author, or show the act to be innocent in itself. 4 Bac. Abr. Libel, b. 1, p. 457. Lamb’s Case, 9 Coke, 59. For if a libel appears under a man’s handwriting, and no other author is known, he is taken in the manner, and it turns the proof upon him; and if he cannot producé the composer, it is hard to find that he is not the very man.
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By the Court.
Lumpkin, J.
delivering the opinion.
[1.] Did the indictment contain a sufficient averment of the publication of the libel % It charges that David Giles, the defendant, on the 6th day of July, 1847, did maliciously and falsely “ utter and publish, that is to say, did then and there write, and fasten upon the side of a tree in a public place, where it could [282]*282be there read, the following malicious defamation, in writing, of and concerning one William Thompson (the prosecutor,) and others,” &c. It is objected, that it should have been alleged that the libel was read. Was this necessary? If so, then the fact that it was read should have been proven also. We are of opinion that neither was requisite to constitute the offence.
Actual communication of the contents of a libel, as by singing or reading, is one mode of publication; but it is neither the only nor the usual mode. The common method is by the posting up of the paper, written or printed, or its delivery, and no question is ever asked as to whether it was read or not. Jj We say of an author that he has published a book, when he has given its contents to the world; and we speak of Úm publication of a will, without meaning to denote that the contents of the instrument have been actually communicated. So it is with a libel./ Publication, says Best, J. in The Sing vs. Sir Francis Burdett, is nothing more than doing the last act for the accomplishment of the mischief intended by it. The moment a man delivers a libel from his hands, his control over it is gone; he has shot his arrow and it does not depend upon him whether it hits the mark or not. ^ There is an end of the locus penitentice — his offence is complete — all that depends upon him is consummated; and from that moment, upon every principle of common sense, he is liable to be called upon to answer for his act.
So then, the mere delivering over, or parting with the libel, is a publication. There need be no averment or proof of the actual communication of the contents of the paper. Lord Colee says, a libel may be published, traditione, by delivery, (5 Reports, 126, a;) and this definition is adopted by Chief Baron Comyns, in his Digest, title, Publication, b. 1. If a letter containing a libel is sent sealed to another, or to the party himself against whom it is made, or is addressed through the post office, it is a sufficient publication. 1 Saund. Rep. 132, notes.
If these propositions be tenable, and I doubt not they are law, then the case before us is free from doubt. I would only add, upon this branch of the case, that Chief Justice DeGrey, in delivering the opinion of the Court in Baldwin vs. Elphinston, (2 Wm. Black. Rep. 1037,) says, there are in Rastall’s Entr. tit. Action sur le Case, 13 a, two instances of constructive publications, [283]*283by delivering letters to A and B, and, by fixing them on the door of St. Paul’s Church.
[2.] Many minute and ingenious exceptions are taken to the indictment, for want of proper inuendos to give certainty to the libel. To all of which our answer generally is, that the office of the inuendo is to point out and refer to matter already expressed ; to explain the meaning of the publication, when it is obscure, and to designate the persons alleged to have been libelled, when they are alluded to in covert and ambiguous terms. But where the paper itself points out, with sufficient clearness, the persons of or concerning whom it is written, and likewise the purpose for which it was written, the office of the inuendo is superseded— no explanation is necessary. And such is the character of this publication. It is its own interpreter.'
[3.] It is argued that it is not libelous to charge a person with being a drunkard. At Common Law any publication is a libel, the tendency of which is to degrade and injure another person, or to bring him into contempt, hatred or ridicule; or which accuses him of a crime punishable by law, or of an act odious and disgraceful in society; and by the Penal Code of this State, a libel is defined to be a malicious defamation, expressed either by printing or writing, or signs, pictures, d!nd the like, tending to blacken the memory of one who is dead, or the honesty, virtue, integrity or reputation of one who is alive, and thereby expose him or her to public hatred, contempt or ridicule.
I ask, is not this publication well calculated to produce these results 1 I never yet saw the man who liked to be called or considered a sot or drunkard. Noah, the first drunken man, became thereby an object of ridicule to his own son. It was the third part of the then male world that manifested this mockery for this habit, and the other two-thirds did but conceal it. True, Ham, as a son, could not justify his unfilial conduct, and he and his descendants, to the present generation, have been deservedly punished for this contempt of his father. This historical fact serves, nevertheless, to illustrate the effect of this habit. But this paper did not stop with imputing excessive debauchery to old man Thompson; it alleges farther, that he was decoyed into his cups for the purpose of being made a cuckold! If this charge would not expose him to universal scorn and contempt, I know not what would, not only with the admirers of Byron — and their name is [284]*284legion — and such as would, rather be the hero of Don Juan, than the author of the English Bards and Scotch Reviewers, but likewise with the most elevated and worthy of mankind. But the enormity of this libel stops not here. As if to involve its victim in the lowest depths of infamy and disgrace, he is accused, not only of being a tory in the war of the Revolution, but with having been punished in the most ignominious manner for the robberies which he then committed. When the name of Washington shall grow old and cold to the ear of the patriot; when it shall be synonymous with that of Arnold; when the poles of the earth shall be swung round ninety degrees, to a coincidence with the equator,” then, and not before, will it cease to be a libel to call a man a plundering tory of the Revolution!
[4.] The Court charged" the Jury, that if they believed the libel was in the handwriting of the defendant — was afterwards found by the side of a public road, and read — the presumption was, that it was published by him, or by his authority ; that if it was not so published, it was incumbent on the defendant to show how it came out of his possession; and to these instructions the defendant, by his counsel, excepted. Suffice it to say, that the presiding Judge has employed, in this portion of his charge, the very language almost of thelaooks.
[5.] A person who appears once to have written a libel, which is afterwards published, will be considered as the maker of it, unless he rebut the presumption of law, by proving another to be the author, or show the act to be innocent in itself. 4 Bac. Abr. Libel, b. 1, p. 457. Lamb’s Case, 9 Coke, 59. For if a libel appears under a man’s handwriting, and no other author is known, he is taken in the manner, and it turns the proof upon him; and if he cannot producé the composer, it is hard to find that he is not the very man. Per Holt, C. J. in Rex vs. Beare, 1 Ld. Raym. 417.
[6.] The defendant complains of the charge as to the degree of conviction which should rest on their minds, before they found the prisoner guilty. The Court stated, that while it was true that the defendant was entitled to the benefit of any doubts they might entertain of his guilt, they must be reasonable doubts, not “a may be so,” or “ a might be so.”
I would remark, that the terms in which this doctrine is stated in Macnally’s Evidence, is well calculated to mislead Juries. [285]*285They are there enjoined not to give their verdict against a prisoner, without plain, direct and manifest proof of his guilt; which implies, says Sir Edward Coke, that where there is doubt, the consequence should be acquittal of the party on trial. They are furthermore reminded, that their duty calls on them, before they pronounce a verdict of condemnation, to ask themselves whether they are satisfied, beyond the probability of doubt, that the prisoner is guilty of the charge alleged against him in the indictment. And Chamberlain, J. B. R. in his charge to the Jury on the trial of Finny, is there reported to have said that, “ if there be a doubt, I take it to be a clear maxim, founded in humanity as well as law, that you must acquit the prisoner.” Ridgeway’s Rep. 147.
Now it is conceded, that in all criminal cases whatsoever, it is essential to a verdict of condemnation, that the guilt of the accused should be fully proved; and that neither a mere preponderance of evidence, nor any weight of preponderant evidence, in the language of Mr. Btarkie, is sufficient for the purpose, unless it generate full belief of the fact, to the exclusion of all reasonable doubt. Still, absolute, mathematical or metaphysical certainty is not essential; and besides, in judicial investigations, it is wholly unattainable. Moral certainty is all that can be required. The proof should be such as 'to control and decide the conduct of men in the highest and most important affairs of life, and not a mere vague conjecture, a fancy, a trivial supposition, a bare possibility of innocence. To acquit upon such doubts, is a virtual violation of the Juror’s oath, and an offence of great magnitude against the interest of society, directly tending to the disregard of the obligation of a judicial oath, the hindrance and disparagement of justice, and the encouragement of malefactors. 1 Starkie, 514. "We consider this to be the fair import of the language used by the Court.
I would add, that great Judges have held, that there is no difference between the rules of evidence in this particular in civil and criminal cases ; that if the rules of evidence prescribe the best course to get at truth, they must be, and are, the same in all cases, and in all civilized countries; and Lord Mansfield, in the Douglas case, gives the reason for this : “ As it seldom happens that absolute certainty can be attained in human affairs, therefore reason and public utility require that Judges, and all mankind, in [286]*286forming their opinions of the truth of facts, should be regulated by the superior number of probabilities on one side and on the other."
[7.] While I am not prepared to subscribe to the principle here suggested, still I have deemed it my duty to intimate that it may be going quite too far to say, that even in criminal cases, the guilt of the accused must always be established by demonstrative and irrefragable evidence. It is enough that the evidence, whatever be its character, whether positive or presumptive, direct or circumstantial, satisfies the understanding and conscience of the Jury.
[8.] A new trial was moved for upon the grounds already considered, and for the farther reasons, that the verdict was contrary to evidence, and on account of newly discovered testimony; and the refusal of the Court to grant this application is excepted to as error.
1. This Court is frequently called on to review the question as to how far it will interfere to set aside a verdict and grant a new trial, where there has been a conflict of testimony, and the case has been fully submitted on its merits; and we have again and again ruled, as we now do, that the verdict of a Jury will not be set aside as against evidence, where there has been evidence on both sides, and no rule of law violated, nor manifest injustice done, although there may appear to have been a preponderance of evidence against the verdict; especially where, as in this case, the Judge who tries the cause expresses himself satisfied with the finding. Courts should rarely take it upon themselves to decide on the effect of evidence. Were they so to act, they might, with great justice, be charged with usurping the privileges of the Jury, and making a criminal trial not what it is by our law, a trial by Jury, hut a trial by the Court.
[9.] 2. The other ground insisted upon for a new trial is, newly discovered evidence. Giles, the defendant, swears, that since the trial, he has been informed by James Youmans, that he was told, a short time previously, by Q,uepha Youmans, that she was at the house of the prosecutor when the libel was shown to her by him; that about that period she received a scurrilous paper from an individual living in the neighborhood, (not deponent,) and that from the great similarity in the style of the handwriting, and the abusiveness of the language of the two papers, and from [287]*287the fact that the author was at variance with the prosecutor, she would testify that the libel was not written by Giles.
[10.] One capital defect in this showing is, that the defendant swears that a third person informed him that he was told, &c. Why did he not produce the affidavit of James Youmans, his informant ? Upon such a statement as this, no man ever would be hung, or imprisoned, or otherwise punished. Who could not get a friend to inform him (not under oath) what another would prove? The prisoner need not procure 'such a communication to be made — it would be voluntarily tendered.
But, aside from this, the newly discovered evidence is merely cumulative, or in corroboration of testimony to a point presented at the former trial, to wit: the handwriting of the defendant. Nor would it, if offered, likely produce a different result, consisting as it does, mainly in a comparison of handwriting, and, therefore, of doubtful competency.
On all the points made in the bill of exceptions, the judgment of the Court below is affirmed.