TITLE XVIII.

OF OFFENCES AFFECTING REPUTATION.

CHAPTER I.

Of defamation.

Art. 362. Whoever shall defame another, shall be punished by fine and imprisonment, or both.

If the defamation impute a CRIME, it shall be punished by fine not exceeding three thousand dollars, or by imprisonment not more than twelve months, or by both; and the imprisonment may, for the whole or a part of the time, be in close custody.

If the defamation do not impute a CRIME, the punishment shall be lessened one-fourth.

If the defamation be by libel, imprisonment in close custody shall always form a part of the punishment.

Art. 363. Defamation is an injury offered to the reputation of another, by an allegation which is either untrue, or, if true, is not made with a justifiable intent.

Art. 364. Defamation may be made verbally or by signs, which is called slander; or by writing or painting, which is called libel.

Art. 365. This offence consists in the injury offered to reputation, not in any probable breach of the peace or other consequence that may result from it.

Art. 366. There must be some injury offered in order to constitute the offence; therefore, the words used, or the figures represented, must convey the idea, either

1. That the person, to whom they refer, has been guilty of some crime.

2. That he has done some act, or been guilty of some omission, which, although not a crime, is of a nature to make people in general avoid social intercourse with him, or lessen their confidence in his integrity.

3. That he has some moral vice, or physical or mental defect or disease, that would cause his society to be generally avoided or

4. That his general character is such as to produce either of the effects mentioned in this article.

Art. 367. It is also an injury, coming within the definition, if the natural tendency of the words or representations used is to bring upon the person, to whom they refer, the hatred, ridicule, or contempt of the public; or to deprive him of the benefits of social intercourse.

Art. 368. To make false representations, importing that the party referred to wants the necessary talents, or is otherwise incompetent to

perform or conduct the office, business, profession, or trade, in which he is engaged; or is dishonest in his conduct therein; is also an injury within this part of the definition.

Art. 369. But it is not an offence to make true statements of fact, or express any opinion, whether such opinion be correctly formed or not, as to the qualifications of any person for any public office, with a bona fide intent to give information to those who have the power of making the appointment or election to such office.

Art. 370. Nor is it an offence to make true statements of fact, or express the opinion which he who gives it entertains relative to the integrity or other qualifications to perform the duties of any station, profession, or trade, when it is done by way of advice to those who have asked it, or to those whom it was a duty, arising either from legal or social connexion, or from motives of humanity, to give such advice.

Art. 371. Nor shall it be deemed an offence, to make or publish any criticism or examination of any work of literature, science, or art; or to express any opinion on the qualifications, merits, or competency of the author of such work, in relation thereto; although such criticism, examination, or opinion, shall be ill-founded and prove injurious to the party to whom it refers: provided, such criticism or expression of opinion be not intended to cover a malicious design to injure the party to whom it refers.

Art. 372. If the injury spoken of in the definition be OFFERED, it is sufficient to constitute the offence; by which is not meant, that the injury must be actually suffered; but that the words or representations are such as, in the ordinary course of affairs, tend to cause such injury, according to the definition and explanation of that word in this chapter. Art. 373. All those who make, publish, or circulate a libel, are severally guilty of the offence of defamation.

Art. 374. He is the maker of a libel, who originally contrived, and either gave it form himself, by writing, printing, engraving, painting, or any other of the modes which may constitute a libel, or caused it to be so done by others.

Art. 375. He is the PUBLISHER, who executes the mechanical labour of writing it when dictated by the maker, or who paints or engraves, or in any other manner gives it form under his direction, who copies, or prints it.

Art. 376. He circulates who sells a libel, or who, knowing the contents, gives or distributes, or reads, or exhibits it to others.

Art. 377. If the libel be in a printed form, and is printed or sold in an office, or shop, where books, or other printed works are usually printed or sold, the person on whose account the business of such office or shop is carried on, is presumed to be the person who published or circulated it, until he remove that presumption by contrary proof.

Art. 378. In like manner, if the libel be an engraving, or painting, and is made and sold in an office or shop, in which paintings or engravings are usually made or sold, the person on whose account the business of such office or shop is carried on, is presumed to be the person who published or circulated it.

Art. 379. No one shall be convicted merely on evidence of his having made a manuscript copy of a libel, or of having performed the mechanical labour of printing it, who can prove that he made such printed or written copy without any intent to injure the person to whom it

refers; but he, for whose account, or by whose order it is printed, shall be presumed to have known the intent of publication, and shall be liable for the offence.

Art. 380. He is not guilty of the offence, who only lends or gives a book or paper containing a libel, or reads it to another after it is already in general circulation, unless some circumstances are proved to show that it was done with design to injure.

Art. 381. The injury to constitute the offence, must be offered to the REPUTATION. Words, or representations which injure the party in his title to property only, form a different offence, provided for under its proper head.

Art. 382. The words "of another," in the definition of this offence, comprehends every person in possession of his CIVIL RIGHTS, as also aliens, whether resident within the state or not.

Art. 383. The dead are also included in this term, but subject to the following formality and proviso:

1. No prosecution shall be commenced, but on the complaint of a family meeting, called at the request of a descendant, collateral relation, or friend of the deceased, in the manner directed by the Code of Civil Procedure.

2. No prosecution can be supported, for the statement of any historical facts, or delineations of character in any literary work, whether the party to whom they refer be dead or alive, provided such statements be made in the fair prosecution of historical or other literary disquisition, and not for the purpose of defamation.

Art. 384. The word "allegation," as used in the definition, comprehends not only the direct assertion of a fact, but every mode of speech or device, by which the hearers or spectators may understand what is intended.

Art. 385. The words or representations by which the allegation is expressed, are to be understood in the sense in which they were intended by the person using them: intent and signification are matters of fact to be determined from a consideration of all the evidence in the case.

Art. 386. An important part of the definition is that which determines that the uttering of truth may sometimes constitute defamation. The truth may be expressed in all cases in which it is not forbidden by law, but the allegation of falsehood is not always an OFFENCE; it is sometimes made the cause of private suit, sometimes left to the sanction of the moral sense, or of public opinion. For the development of this branch of the definition, the following rules are established:

1. True statements of the OFFICIAL Conduct of members of the general assembly, or of public officers, and of the proceedings of all legislative bodies, PUBLIC CORPORATIONS, and courts of justice, may be legally made.

2. Observations on the tendency of the official acts of members of the legislature, and of public officers, and on their motives in performing them, are permitted, even if the author should mistake such tendency or motives; but a false allegation or suggestion of such motives, as would, connected with the act, constitute a crime, is defamation.

3. Allegations, having no natural connexion with the case, provided for by the two last preceding articles, which would amount to defamation, if made or exhibited alone, are offences, although they may be

contained in publications which treat or propose to treat of the conduct of public measures and public officers.

any

Art. 387. Allegations, in writing, made with respect to all other than, the official acts above provided for, which would, if they were false, be defamation, shall, although true, constitute that offence, if they are made from motives of revenge, hatred, envy, or ill-will of other kind, entertained by the party making them, or to gratify either of those passions in any other; and they shall be deemed to have been made from such motive in all cases in which the defendant cannot show that he was actuated by some motive of public good, or private duty, in making the allegation.

5. No true allegations but such as are described in the last preceding rule, and no false allegations but such as are declared to be offences by this code, are declared punishable by law.

6. No prosecution can be maintained for defamation, on account of any thing said or written, either as judge, attorney, counsel, party or witness, in a court of justice in the course of a legal proceeding, provided that what is said or written be relevant to the matter before such court, and is not introduced for the sole purpose of injuring the party to whom it refers.

7. Inquiries and suggestions, made even out of court, if done with a bona fide view of investigating a fact, necessary for the party's interest in a civil, or defence in a criminal prosecution, and not from malice towards the party to whom they refer, are not an offence, although they may injure such party.

8. Nothing said by a party to a civil suit or criminal prosecution, in confidence to his attorney, solicitor or counsel, relative to such suit or prosecution, while it is pending, or with a view to its commencement or defence, is an offence under this chapter.

9. The constitutions of the United States and of this state severally, protect members of congress and of the general assembly from prosecutions for any thing said in either of those bodies. The same rule is to be observed with respect to members of the legislatures of the different states, and those who may publish their proceedings.

Art. 388. The word "verbally," used in the definition of slander, means the utterance of words by the voice; and the words "by signs," comprehend every motion of the fingers or other gesture, that is understood by the party using it, and by them to whom it is addressed, to signify words, or otherwise to communicate ideas.

Art. 389. It is slander to repeat the contents of any libel, or the words of any slander, unless the defendant show that he was not actuated in doing so by any desire to injure the person defamed.

Art. 390. The word "writing," in the definition of libel, comprehends not only manuscript, but printing, engraving, etching or any other means now known, or which may hereafter be discovered or invented, to make words visible. The word "painting," in the same definition, includes not only the art usually so called, but drawing, engraving or representing figures in any other way. It also comprehends hieroglyphics, or the representation of words by objects which they signify.

Art. 391. Offences enumerated in this chapter can only be punished by indictment, and never but on complaint of the party injured, or his legal representative, if he be alive; or if the defamation be against the

reputation of the person deceased, then in the manner herein before provided.

Art. 392. In all the offences created by this chapter, the jury decide not only all the facts that are in question, but the intent when it is material, subject to the general powers given to the court in the Code of Procedure.

Art. 393. Nothing in this chapter contained shall be so construed as to prevent or punish the free discussion of the proceedings of the legislature, or any other branch of the government, which is secured by the constitution; and nothing shall be considered as an abuse of the liberty, to speak, write and print on any subject which is referred to in the constitution, but such acts of that nature as are specially constituted offences by this code.

Art. 394. There is no such offence known to our law as defamation of the government, or either of its branches, either under the name of libel, slander, seditious writing or other appellation. When such allegations amount to defamation of the representatives of the people, or public officers, they are provided for by the preceding articles. When they amount to the crime of complicity in sedition, or in opposition to law, they are made punishable by the general provisions respecting accomplices.

Art. 395. There is no such offence as defamation of a body corporate or politic, or of public justice, or religion, or good morals, either by libel or otherwise.

Art. 396. In all cases of prosecution under this chapter, the court may, at its discretion, make it a condition that the whole or any part of the punishment which is awarded, may be remitted on the offender's making apology and amends to the person injured in such form and manner as the court shall by its sentence declare; and if the person injured shall accept of any pecuniary amends, it shall be a bar to any private suit for defamation, founded on the same offence.

Art. 397. On the trial of any prosecution for a defamation, if the jury find that the defendant is the author of the libel, or the speaker of the defamatory words, and that the matter which constitutes the libel is false in the whole or in part, they shall specially so declare it in their verdict; declaring the allegations of the defendant to have been unfounded, and, where the case requires it, malicious; and the charge made by the defendant, the verdict and the judgment of the court, shall, when required by the prosecutor, be published at the expense of the defendant.

Art. 398. Whenever the defendant, in any prosecution for defamation, shall avow himself the author or speaker of the words alleged, and shall acknowledge that the charge they import is unfounded; or that they were not intended to apply to the prosecutor; or in cases where there is either ambiguity in the expression, or uncertainty as to their application that they were not used in the sense in which they were understood by him, but in another sense, stating it. In either of these cases, the punishment shall be confined to the payment of costs, and of the publication of the proceedings; unless the defendant shall make it appear that the words, according to their true import, did not imply any defamation, or did not apply to the prosecutor; in which case he shall be exempt from any costs; but the proceedings may, in like manner, be published.