TRUE REPORT OF OFFICIAL PROCEEDINGS. 1. Truth of publication may be shown-Effect of showing. 2. True report of testimony of witness in judicial proceeding. 3. Practice-Circumstances of mitigation, evidence of. 4. Evidence of good faith. 5. Judicial proceedings Injurious articles concerning attorney at law. As to contempts committed by publication,' tending to interrupt course of trial or other judicial proceedings, see Kerr's Cyc. Code Civ. Proc. (2d ed.), § 1209 and note. As to criticism of public person, see notes, 6 L. R. A. 680; 13 L. R. A. 97, 98; 28 L. R. A. 667. As to privileged communications in general, see note, 6 L. R. A. 363. As to reports of judicial proceedings, etc., see note, 3 L. R. A. 417. 1. Truth of publication may be shown to be free from imputation of malice by showing not only upon what evidence publication was made, but also circumstances under which it was made, source of information, and facts tending to show motives which induced publication, to enable jury to pass on question whether or not publication was in fact malicious, as being made in good faith or without probable cause.-People v. Glassman, 12 Utah 238, 42 Pac. 956. 2. True report of testimony of witness in judicial proceedings.—Under provisions of 5. Judicial proceedings—Injurious articles concerning attorney at law.—Article published in newspaper, concerning an attorney at law, which would tend to injure his character and reputation as honest and honorable attorney at law, would, like similarly injurious article published against any other person, be prima facie libelous; and fact that it had some connection with judicial proceedings, though not report of any portion thereof, would not render it privileged, or conditionally privileged.-State v. Wait, 44 Kan. 310, 8 Am. Cr. Rep. 482, 24 Pac. 354. § 255. EXTENT OF PRIVILEGE. Libelous remarks or comments connected with matter privileged by the last section receive no privilege by reason of their being so connected. History: Enacted February 14, 1872. The 1. "Privileged communication" is conditionally, but not absolutely, privileged.— The question is one of good faith or motive, and can be settled only by a jury. court can not rule that a communication is privileged without assuming the conditions under which it is held to be privileged; namely, that it was made in good faith, for a justifiable purpose, and with a belief, founded on reasonable grounds, of its truth. -Mass. Gassett v. Gilbert, 72 Mass. (6 Gray) As to libel by expressing opinions or comments without misstating facts, see note, 28 L. R. A. 667. As to threatening letters in general, see note, 58 Am. St. Rep. 600. § 256. OTHER PRIVILEGED COMMUNICATIONS. A communication made to a person interested in the communication, by one who was also interested or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent, is not presumed to be malicious, and is a privileged communication. History: Enacted February 14, 1872. PRIVILEGED COMMUNICATIONS. I. PRIVILEGED COMMUNICATIONS-INTEREST. 2, 3. Confidential communications-Consideration of public policy, etc. 4, 5. Charge of crime-When subject to privilege-Doctrine compared. 6. Interest in communication, nature of. 7. Same-Interest such as springs from prurient curiosity. 8. Privileged communications-When cease to be such. 9. Publication made in good faith. II. PLEADING AND PRACTICE. 10. Action-Probable cause, when bar to suit. 11. Burden of proof-Upon defendant. 12. Evidence as to probable cause. 13. Malice or intent to injure-When presumed. 14. Privileged matters-Demurrer to indictment. 15. Truth of charge-When insufficient defense. I. PRIVILEGED COMMUNICATIONS INTEREST. As to false and malicious publication of privileged communications constituting libel, see, ante, § 251 and note par. 10. As to privileged communications or expressions in general, see notes, 2 Am. Dec. 431; 15 Am. Dec. 232; 31 Am. Rep. 708-715. 1. Candidates for public office are amenable to public and private criticism, made in good faith and based upon reasonable or probable cause; and when person becomes such candidate he is regarded in law as putting his character in issue in respect to his qualifications and fitness for the office to which he aspires.-People v. Glassman, 12 Utah 238, 42 Pac. 956. 2. Confidential communications failing to come within range of privileged communications are published at peril of publisher. -Smith v. State, 32 Tex. 594. made 3. Communication confidentially does not of itself place it in class of privileged communications. There must be some consideration of moral duty or of public policy connected with it, in order to range it in the class of privileged communications. -Smith v. State, 32 Tex. 594. 4. Charge of crime against one who is candidate for public office is, in some states, held to be subject of privilege, it being sufficient to confer privilege that matter is of public interest to community.-Briggs v. Garrett, 111 Pa. St. 404, 56 Am. Rep. 274, 2 Atl. 513. See Mass. Smith v. Higgins, 82 Mass. (16 Gray) 251. Minn. Marks v. Baker. 28 Minn. 162, 9 N. W. 678. N. Y. Bush v. Prosser, 11 N. Y. 347. Pa. Gray v. Pentland, 2 Serg. & R. 23. Eng. Toogood v. Spyring. 1 C. M. & R. 181, 193, 40 Rev. Rep. 523; Clay v. Tinling, L. R. 1 Q. B. 699. 5. Compare doctrine that publication in newspaper, concerning either public officer or candidate for elective office, which falsely imputes to him crime, is not privileged by occasion, either absolutely or qualifiedly, but such publication is actionable per se. law imputing malice to publisher or author. -III. Rearick v. Wilcox, 81 Ill. 77. Mass. P. C.-21 Commonwealth v. Clap, 4 Mass. 163, 165, 3 Am. Dec. 212; Curtis v. Mussey, 72 Mass. (6 Gray) 261. Mich. Bronson v. Bruce, 59 Mich. 467, 60 Am. Rep. 307, 26 N. W. 671. Minn. Aldrich v. Press Printing Co., 9 Minn. 133, 86 Am. Dec. 84. N. Y. Root v. King, 7 Cow. 613; King v. Root, 4 Wend. 113, 21 Am. Dec. 102. Ohio. Seeley v. Blair, Wright 358, 683. Tenn. Brewer v. Weakley, 2 Overt. 99, 5 Am. Dec. 656. 6. Interest in communication must be such as in some way or degree concerns and affects character, welfare, just and reasonable prospects, social relations, and office, or such like interests, of party to whom communication is made.-State v. Derry, 20 Mo. App. 552. 7. Same-Interest such as springs from prurient curiosity or appetite of newsmonger is not such interest in communication as is contemplated in law. State v. Derry, 20 Mo. App. 552. 8. Privileged communication — When ceases to be such.-Even though publication be considered privileged when made to citizens interested in subject-matter, such publication, when excessive, and spread broadcast to world, does not preserve its privileged character. It must be confined to people to whom defendant owes duty to speak, or who have interest with defendant in matter.-State v. Haskins, 109 Iowa 656, 77 Am. St. Rep. 560, 47 L. R. A. 223, 80 N. W. 1063. See McAllister v. Detroit Free Press Co., 76 Mich. 338, 15 Am. St. Rep. 318, 356, 43 N. W. 431; Rude v. Nass, 79 Wis. 321, 24 Am. St. Rep. 717, 48 N. W. 555. 9. son Publication made in good faith.—Permay in good faith publish whatever he may honestly believe to be true and essential to protect his own interests, or interests of person or persons to whom he makes publication, without committing any public offense, although what he publishes may in fact not be true, and may be injurious to the character of others.-State v. Balch, 31 Kan. 465, 4 Am. Cr. Rep. 516, 2 Pac. 609. 10. II. PLEADING AND PRACTICE. Action-Probable cause is bar to suit in case of privileged communication.Briggs v. Garrett, 11 Pa. St. 404, 56 Am. Rep. 274, 2 Atl. 513. See Chapman v. Calder, 14 Pa. St. 365. 11. Burden of proof-Upon defendant to show that utterance or publication was within class of privileged communications. -Smith v. State, 32 Tex. 594. 12. Evidence as to probable cause and good faith in publishing articles and charges against candidate for office during heated political campaign may support privileged character of published articles, if it appears that publisher, having investigated special matter of charge with reasonable diligence and care, believed it to be true, and without malice made it known.-State v. Conable, 81 Iowa 60, 46 N. W. 759. See 321 § 257. THREATENING TO PUBLISH LIBEL. OFFER TO PREVENT PUBLICATION, WITH INTENT TO EXTORT MONEY. Every person who threatens another to publish a libel concerning him, or any parent, husband, wife, or child of such person, or member of his family, and every person who offers to prevent the publication of any libel upon another person, with intent to extort any money or other valuable consideration from any person, is guilty of a misdemeanor. History: Enacted February 14, 1872. § 258. PUBLISHING OF CARICATURES AND CARTOONS UNLAWFUL. PENALTY. LIABILITY ATTACHES TO WHOM. [Repealed.] History: Enacted February 23, 1899, Stats. and Amdts. 1899, p. 28; repealed May 22, 1915, Stats. and Amdts. 1915, p. 761. In effect August 8, 1915. § 259. NEWSPAPER ARTICLES OF PERSONAL CHARACTER MUST BE SIGNED. PENALTY FOR VIOLATION. NAME OF AUTHOR OF BOOK OR NEWS AGENCY SUFFICIENT. [Repealed.] History: Enacted March 20, 1899, Stats. and Amdts. 1899, pp. 155, 156; repeal approved April 24, 1917, Stats. and Amdts. 1917, p. 174. SIGNATURE TO ARTICLES-PENALTY for 1. Action to recover penalty or feiture, under above section, does not "arise in contract," within the provision of our code, but is in the nature of a qui tam action. See McCoun v. N. Y. Cent. R. Co., 59 N. Y. 176. 2. A qui tam action for the recovery of a penalty, one-half of the recovery to go to party prosecuting, is a civil action.-See Penn. R. Co. v. New Jersey Society for Prevention of Cruelty to Animals, 39 N. J. L. (10 Vr.) 400; Clark v. Collins, 3 Green (N. J.) 473; Brophy v. City of Perth Amboy, 44 N. J. (15 Vr.) 217, reversing State, City of Perth Amboy v. Brophy, 43 N. J. L. (14 Vr.) 589. 3. Same-In what name brought.-Action under such a statute not otherwise designating, it is thought, must be brought in the name of the state, for the benefit of the informer.-See Seward v. Beach, 29 Barb. (N. Y.) 239; Smith v. Look, 108 Mass. 139; Commonwealth v. Look, 108 Mass. 452; Gause v. Lake Shore, etc., R. Co., 2 Cleve. L. Rep. 44, 4 Ohio Dec. (reprint) 369. 4. Compare: Caswell v. Morgan, 1 El. & El. 809, 102 Eng. C. L. 809. 5. Same-When interest of party vests. -An informer in a qui tam action, brought under the above section for the enforcement of the penalty of forfeiture, does not acquire a vested right to the penalty until after judgment has been recovered.-See Bank of St. Mary's v. State, 12 Ga. 475; Chicago, etc., R. Co. v. Adler, 56 Ill. 344. 6. Constitutionality of provision in the above section, that "one-half of the recovery" (forfeiture or penalty) "shall go to the person prosecuting the action," is thought to be beyond question.-See Toledo, St. L. & K. C. R. Co. v. Stephenson, 133 Ind. 203, 30 N. E. 1082; State v. Indiana & I. S. R. Co., 133 Ind. 69, 18 L. R. A. 502, 32 N. E. 817; State v. Pennsylvania R. Co., 133 Ind. 700, 32 N. E. 822; Ott v. Jordan, 116 Pa. St. 218, 9 Atl. 321; Southern Express Co. v. Commonwealth, 92 Va. 59, 41 L. R. A. 436, 22 S. E. 809. 7. Said provision giving to the person prosecuting one-half of the forfeiture is not repugnant to article VIII of the amendments to the constitution of the United States, for the reason that said amendments have reference solely to the powers exercised by the government of the United States, and do not apply to the state.-See Southern Express Co. v. Commonwealth. 92 Va. 59, 41 L. R. A. 436, 22 S. E. 809; Livingston v. Moore, 32 U. S. (5 Wall.) 475, 18 L. ed. 608; Eilenbecker v. Plymouth Co. District Court, 134 U. S. 31, 33 L. ed. 801; O'Neil v. Vermont, 144 U. S. 323, 36 L. ed. 450. 8. "Forfeiture" Distinguished from "fine."-Forfeiture provided for in above section is distinct from an ordinary "fine." A fine consists, in whole or in part, in a punishment for many of the smaller offenses within the common law, and also for many offenses created by statute, and compre hends only such fines as are fixed as penalties for crime, and are recoverable upon conviction of the offender, and does not embrace other pecuniary penalties for forfeitures provided by statute for which a popular or qui tam action (which is a civil action) may be brought to recover.-Southern Express Co. v. Commonwealth, 92 Va. 59, 41 L. R. A. 436, 22 S. E. 809. 9. The forfeiture provided for in the above section is not a penalty for a crime.for "an offense committed against the state," -but simply a forfeiture provided to be inflicted on account of the doing of an act which the law-making power of the state, in its wisdom, deemed necessary to prevent imposition upon its citizens in the shape of anonymous and slanderous attacks upon character.-See Southern Express Co. V. Commonwealth, 92 Va. 59, 41 L. R. A. 436, 22 S. E. 809. TITLE IX. OF CRIMES AGAINST THE PERSON AND AGAINST PUBLIC DECENCY AND GOOD MORALS. Chapter I. RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND SEDUCTION, §§ 261-2696. II. ABANDONMENT AND NEGLECT OF CHILDREN, §§ 270-273h. III. ABORTIONS, §§ 274, 275. IV. CHILD-STEALING, § 278. V. BIGAMY, INCEST, AND THE CRIME AGAINST NATURE, §§ 281-288a. VI. VIOLATING SEPULTURE AND THE REMAINS OF THE DEAD, §§ 290-297. VII. OF CRIMES AGAINST RELIGION AND CONSCIENCE, AND OTHER OFFENSES AGAINST VIII. INDECENT EXPOSURE, OBSCENE EXHIBITIONS, BOOKS AND PRINTS, AND BAWDY RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND SEDUCTION. § 261. RAPE DEFINED. Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances: 1. Where the female is under the age of eighteen years; 2. Where she is incapable, through lunacy or other unsoundness of mind, whether temporary or permanent, of giving legal consent; 3. Where she resists, but her resistance is overcome by force or violence; 4. Where she is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution, or by any intoxicating narcotic, or anaesthetic, substance, administered by or with the privity of the accused; 5. Where she is at the time unconscious of the nature of the act, and this is known to the accused; |