majority">

The opinion of the court was delivered by

Mahan, P. J.:

The motion to quash went to the entire information. If either count charged an offense the motion was properly denied. The supreme court of Massachusetts, in Carter v. Andrews, 16 Pick. 6, says:

“Whenever words have the slanderous meaning alleged, not by their-own intrinsic force, but by reason of the existence of some extraneous fact, this fact must be averred in a traversable form, which averment is called the ‘inducement.’ There must then be a colloquium averring that the slanderous words were *88spoken of or concerning this fact. Then the word ‘meaning’ or ‘innuendo ’ is used to connect the matters thus introduced by'averments and colloquia with the particular words laid, showing their identity and drawing what is then the legal inference from the whole declaration, that such was, under the circumstances thus set out, the meaning of the words used.”

It is well-settled criminal law that an innuendo cannot take the place of such allegations of inducement. Mr. Bishop, in section 748 of his work on Criminal Procedure, in speaking of innuendo, says: “Its office is limited strictly to the explanation thus indicated ; for it cannot add to or change or explain the previous statements, which must be sufficient as to the facts attendant on the libelous publication, without drawing anything from the innuendo. It is not, therefore, a matter upon which evidence can be introduced to sustain it at the trial.” The same rule is announced in State v. Atkins, 42 Vt. 252; 13 Encycl. Pl. & Pr. 88, 89.

In all of the counts of this information, by way of innuendo only, is stated matter explanatory of the publication, which was necessary to be alleged by way of inducement. The offense does not appear complete from the publication itself. In other words, the facts attendant on the publication, which were necessary to explain it and necessary to charge the offense sought to be charged by the information, are not well pleaded therein. This applies to all of the counts. For this reason .the motion to quash should have been sustained.

We are of the opinion that the court abused its discretion in denying the defendant’s petition for a change of venue. The facts alleged are sufficient to sustain the charge of prejudice. They are not denied, except that the presiding judge, in his statement, de*89nies that he bribed or attempted to bribe the defendant to procure his support at the preceding election. He explains, or attempts to explain, why he has not spoken to the defendant since the election. The fact, however, remains that within a year before the trial the defendant' did charge the judge with bribery. This charge was made by a publication in his newspaper during the progress of the canvass. It was reiterated in the contest proceeding in March, 1899. These occurrences were too recent not to affect in some degree the feelings of the judge towards the defendant. He may have believed that he could act without bias or prejudice in the trial, but it would be an experiment dangerous to the rights of the defendant to permit him to make the effort.

It was error to give paragraph 13 of the instructions. It was not necessary that the defendant should prove to the satisfaction of the jury that he did not participate in the publication. It was only necessary for him to produce evidence sufficient to raise in the minds of the jury a reasonable doubt that he did so. The burden was upon the state as to this issue and it did not change. (The State v. Wait, 44 Kan. 320, et seq., 24 Pac. 354; The State v. Osborn, 54 id. 473, 38 Pac. 572; The State v. Child, 40 id. 482, 20 Pac. 275.)

It was error to give paragraph 17 of the instructions. The court said in that instruction that any imputation against a person holding an office which imports a charge of unfitness to administer the duties of the office is libelous. It seems to savor of the old adage, that the king can do no wrong. If an officer is the servant of the people, his official conduct is a proper matter for criticism, within proper bounds ; and a mere imputation of unfitness for the office is *90not libelous per se, and this is the substance of what the court said to the jury. It follows that the court erred in denying the defendant’s motion for a new trial.

The judgment is reversed, and the cause remanded for further proceedings in accordance herewith.

McElroy, J., concurring.Wells, J.:

I concur in the judgment reversing this case on the ground that the court misdirected the jury, but dissent from the rest of the opinion.

Citation profile

Relationships

How this case has been treated — in progress