Evidence of publication, in order to sus tain an indictment upon a libel, must be to the same effect as in case of a civil action brought thereon. The publication of the libel, in order to warrant either civil action or indictment must be malicious ; evidence of the malice may be either express or im plied. Express proof is not necessary; for where a man publishes a writing which on the face of it is libellous, the law presumes he does so with that malicious intention which constitutes the offence, and it is un necessary, on the part of the prosecution, to prove any circumstance from which malice may be inferred; 4 B. & C. 247; Hagan v. Hendry, 18 Md. 177 ; White v. Nicholls, 3 How. (U. S.) 266, 11 L. Ed. 591; Mix v. Woodward, 12 Conn. 262. Malice need not be shown, and absence of it will only go in mitigation of damages ; Schuyler v. Bushey, 68 Hun 474, 23 N. Y. Supp. 102.
. What Constitutes a Libel. One is not lia ble for words not in their nature defama tory, though special damage result from their publication ; Reid v. Journal Co., 20 R. I. 120, 37 Atl. 637 ; Fanning v. Chace, 17 R. I. 388, 22 Atl. 275, 13 L. R. A. 134, 33 Am. St. Rep. 878; Prosser, v. Callis, 117 Ind. 105, 19 N. E. 735. The words must be defamatory in their nature and must in fact disparage the character; Terwilliger v. Wands, 17 N. Y. 57, 72 Am. Dec. 420; and if they do not, no action will lie, no matter what the author intended ; Mosier v. Stoll, 119 Ind. 244, 20 N. D. 752 ; see Petsch v. Printing Co., 40 Minn. 291, 41 N. W. 1034. If the matter is understood as scandalous, and is calculated to excite ridicule and abhorrence against the party intended, it is libellous, however it may be expressed; Com. v. Chapman, 13 Mete. (Mass.) 68 ; Com. v. Sweney, 10 S. & g, (Pa.) 173; Croasdale v. Bright, 6 Roust. (Del.) 52; Stokes v. Stokes, 76 Hun 314, 28 N. Y. Supp. 165; but wherever the words' are susceptible of two meanings, it is a question for the jury to decide what meaning was in fact conveyed to the readers; 7 App. Cas. 741; Hanchett v. Chiatovich, 101 Fed. 742, 41 C. C. A. 648.
When suit is brought on words not in themselves actionable, an allegation must be made that they contain a libellous meaning; 7 App. Cas. 748.
Any publication which has a tendency to disturb the public peace or good order of society is indictable as a libel. "This crime is committed," says Professor Greenleaf, "by the publication of writings blaspheming the Supreme Being, or turning the doctrines of the Christian religion into contempt and ridicule; or tending by their immodesty to corrupt the mind and to destroy the- sense of decency, morality, and good order; or wantonly to defame or indecorously to calum niate the economy, order; and constitution of things which'make up the general system of law and government of the country; to degrade the administration of government or of justice; or to cause animosities between our own and any foreign government, by per sonal abuse of Its sovereign, its ambassadors, or other public ministers ; and by malicious defamations expressed in printing or writ ing, or by signs ar pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is living, and thereby to expose him to public hatred, con tempt, and ridicule. This descriptive cata logue embraces all the several species of this offence which are indictable at common law ; all of which it is believed are indictable in the United States, either at common law by virtue of particular statutes." 3 Greenl.
Ev. § 164. See Com. v. Clap, 4 Mass. 163, 3 Am. Dec. 212 ; Steele v. Southwick, 9 Johns. (N. Y.) 214; White v. Nicholls, 3 How. (U. S.) 266, 11 L. Ed. 591; 5 Co. 125; 4 Term 126; Allen v. Pub. Co., 81 Wis. 120, 50 N. W. 1093; Walker v. Wickens, 49 Kan. 42, 30 Pac. 181.
Libels have been classified according to their objects: (1) Libels which impute to a person the commission of a crime; (2) libels which have a tendency to injure him in his office, profession, calling, or trade ; (3) libels which hold him up to scorn and ridi cule and to feelings of contempt or execra tion, impair him in the enjoyment of general society, and injure those imperfect rights of friendly intercourse and mutual benevolence which man has with respect to man. Newell; Stan. & L. 67.
In the following cases the publications have been held to be actionable : to write to a. person soliciting relief from a charitable society, that she presents unworthy claims, which it is hoped the members will reject forever, and that she has squandered away money, already obtained by her the benevolent, in printing circulars 'abusive of the secretary of the society ; 12 Q. B. 624; to publish of a Protestant archbishop that he endeavors to convert Roman Catholic priests by promises of money and prefer ment; 5 Bingh. 17; to charge that persons have confederated to mismanage the affairs of a company, so as to destroy the value of its stock and injure the' other shareholders ; Wallis v. Walker, 73 Tex. 8, 11 S. W. 123 ; to publish a ludicrous story of an individual in a newspaper, it if tend to render him the subject of public ridicule, although he had previously told the same story of himself ; 6 Bingh. 409; to publish in a newspaper that a certain man is dead; Cohen v. New York Times Co., 74 Misc. 618, 132 N. Y. Supp. 1; to publish of a candidate for congress that he is a "pettifogging shyster"; Bailey v. Pub. Co., 40 Mich. 251; to write and publish of any man that he is "thought no more of than a horse thief and a coun terfeiter"; Nelson v. Musgrave, 10 Mo. 648; or that he is slippery ; Peterson v. Tel. Co., 65 Minn. 18, 67 N. W. 646, 33 L. R. A. 302; or that he is a dangerous, able, and se ditious agitator; Wilkes v. Shields, 62 Minn. 426, 64 N. W. 921; to publish of a member of congress, "He is a fawning sycophant, a mis representative in congress, and a grovelling office seeker ;" Thomas v. Croswell, 7 Johns. (N. Y.) 264, 5 Am. Dec. 269; to charge one with joining the Mormons ; Witcher v. Jones, 17 N. Y. Supp. 491; in a newspaper article to call a person named Buskstaff, Bucksniff, because of its similitude to "Pecksniff" ; Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111; for a notary public falsely and maliciously to protest•for non-payment the acceptance of a manufacturer and then send the draft with such protest to the source from whence it came; May v. JoneS, 88 Ga. 308, 14 S. E. 552, 15 L. R. A. 637, 30 Am. St. Rep. 154; but see Hirshfield v. Bank, 83 Tex. 452, 18 S. W. 743, 15 L. R. A. 639, 29 Am. St. Rep. 660; of a publication that one was arrested and put in jail charged with theft; Belo v. Fuller, 84 Tex. 450, 19 S. W. 616, 31 Am. St. Rep. 75; of words imputing want of chas tity ; Collins v. Pub. Co., 152 Pa. 187, 25 Atl. 546, 34 Am. St. Rep. 636; Indianapolis Jour nal Newspaper Co. v. Pugh, 6 Ind. App. 510, 36 N. E. 991.