51 F. 424 -

424

J'JIDERAL

vol. 51.

MITCHELL 11. SHARON.

(C1If'otdl (/fW-rl, N. D. OaUfornw. July 11, 1892.)

No. 11,522. of the following words in the sense indicated:"I can only regard her proposition the plainti1f) for money for "the letters as a' blackmailing soheme. pure and simple, (meaning that plainti1f is ,guilty of theorime of qOucocting a blackmail or extortion soheme.) II Held that, as the words were susceptible of the construction placed on them by the innuendo, the 0Ourt, in considering a demurrer to the complamt, must accept that as the true meaningl..though they were also susceptible of a di1ferent meaning. Hess v. SparkS, Pac. Rep. 979, 44 Kan. 465, distinguished. 2. SUIZ-AOTION.&BLE WORDS. It is not actionable, to say of another that he "is guilty of the orime of concocting a blackmail or extortion scheme, n as thE! words charg!3 merely a plan or purpose to extort money, which is not punishable uilless an attempt is made to carry it out. S. SUlE. ' It is actionable per Be to charge another with being a "blaokmailer, II for this is equivalent to saying that he is guilty of the crime of extortion.
1. .

A cOmplaint for slander ",harged the

'

At Law. Action by,Sarah Mitchell against Frederick W. Sharon for slander. On demurrer to the complaint. Demurrer sustained. Hf/Ylry H. Davis, for plaintiff. William F. Herrin, for defendant.
HAWLEY, District Judge. This is an action of slander to recover $100,000 damages. No special damages are alleged. The complaint aIleges-

"That on the 23d day of July, 1891, at the city and county of San Francisco. state of California, the defendant, in a certain discourse which he then and there had, of and concerning the plaintiff. in the presence and hearing of divers persons. (Who understood that defendant meant the plaintiff,) the defendant falsely and maliciously spoke and pUblished of and concerning the plaintiff the false, scandalous, and malicious words following: In answer to the question asked by one. of said persons of defendant, ·Did you ever see plaintiff,) tbe said defendant replied as follows: Mrs. Mitchell?' (meaning · Nevel' ; and I know very little about her, (ml'aning the plaintiff,) From what I do know I can only regard her proposition (meaning the plaintiff) for money for the letters as a blackmailing scheme, pure and simple, (meaning that plaintiff' is guilty of the crime of concocting a blackmail or extortion scheme.) I have never received any communication from her, (meaning the plaintiff,) but from what ,I .hear I suppose she (meaning the plaintiff) has made demands on the estate for money. Those demands have not been regarded as anything more than mere talk,-the vapid emanations from an idle mind. She (meaning the plaintiff) will wait a long time before she (meaning the plaintiff) gets anything out of the Sharon estate for suppressing such information as she (meaning the plaintiff) may possess. I am often approached by people who talk mysteriously about revealing matters that would be detrimental to the Sharon estate if made public, but I always send them away as Soon as they begin to make blackmailing demands. (Meaning to say of plaintiff that she is guilty of the crim!! of blackmail or extortion, and

MITCHELL V. BHARON.

425

comparing plaintiff with persons guilty of said crime of blackmail or extortion, and of making blackmailing or unlawful, criminal, or wrongful demands.)"

The defendant demurs to this complaint upon the ground that it does not state facts sufficient to constitute a cause of action. "The language of any part of an oral discourse is to be construed with reference to the entire discourse; hence words which, standing alone, would be actionable, may not be actionable when taken in connection with their context." Townsh. Sland. &L. § 137; Van Vactorv. Walkup', 46 Oal. 124. Under the Oivil Oode of Oalifornia -defining slander (section 46) Rnd extortion. (Pen. Oode, §§ 518,519,523,524,) the charge, in order to be obnoxious to the law, mnst be of an offense actually committed or attempted, a punishable offense, and not of an offense existing in contemplation or intention merely. "Words merely imputing to the plaintiff a criminal intention or design are not actionable, so long as no criminal act is directly or indirectly aSl'igned." Odg. Sland. & L. 124. To constitute words actionable perse they must import a charge of crime. Do the words set forth in the complaint charge the plaintiff with the commission of a crime? The words, if considered to be ambiguous, should be constrned "in the sense which hearers of common and reasonable understanding would ascribe to them, even though particular individuals, better informed on the matter alluded to, might form a different judgment on the subject." Townsh. Sland. & L . §§ 135'140. It is not necessary that the language used should charge the commission of a crime with such technical accuracy as would be required in an indictment. If the words uttered by the defendant were reasonably calculated to induce those who heard them to believe tha:t the plaintiff was guilty of a crime they would be sufficient to support the action. Odg. Sland. & L. 121; Wilson v. McCrory, 86 Ind. 170; Zelie! v. Jennings, 61 Tex. 466. When the words spoken, construed in their entirety, are susceptible of two different constructions, one of which would make the words actionable and the other not actionable, it must ordinarily be left to the jury to determine, as a matter of fact, in which sense the words were spoken. Odg. Sland. & L. 113; Waugh v. Waugh,47 Ind. 580; Hayes v. Ball, 72 N. Y. 418. To charge a person with being a "blackmailer" would be equivalent to charg.ing such person with being guilty of the crime of "extortion." The words are treated by lexicographers as synonyr:nous. "The exaction of money for the performance of a duty. the prevention of an injury, or the exercise of an influence;" the "extortion of money from a person by threats of accusation or exposure;" the "wrongful exaction of money." The first question which naturally presents itselfupon reading the complaint is, what did defendant mean by the use of the words, "From what I do know, I can only regard her proposition for money for the letters as a blackmailing scheme, pure and simple?" If theri3 was no innuendo concerning these wOJ;ds, it would be the duty of the court to consider this language with reference to all the qualifying words

j

vol.· 51.

sonably susceptible of being construed as charging plaintiff with an tempt to (lommit the ·crime of extortion. It is true that in a certain class of cases, the. words. were, of themselvescle&rly actionable per 8e,aIld ·it:, WR!!Iattempted by an to enlarge the meaning of the words,Qrtogive thew I!< constru9tionwhioh they were not susceptible of, have said,:that innuendo, being Qseless ,and unneceS/3ary,lUigbt be as surpl\lsage. Townsh·. Sland. & L. §§ 339, 344j'Odg.Sland. &; L. 101, 10Q,,113j Cooper V. Greeley, 1 Denio, 360j,qom. V. Snelling, lS.Pick. 835; Gabe V. McGinnis; 68 Ind. 538. The office of an innuendo is not to enlarge the meaning or to change the sense onhe words spoken, and, iOt does do so, it may be rejected; and, if. the wol'd6 tllemselves are clearly actionable, a demurrer to the cpmplaint should be overruled, because the if he failed to show the meaning alleged in the innuendo,mightfaU backupon the words themselves, and claim that, taken "in their natural and obvious signification, they are actionable per Be without the alleged meaning, and that, therefore, his ,unproved innuendo may be rejected as surplusage." Odg.SIand.,& L. 102, But in this case, even if it should be conceded that tbe"W'prds are sqsC43ptible of an interpretation that would make them aqtionable per 8e, still, it is manifest from the allegations of the complaint that they are susceptible of a different meaning. The plaintiffhaving deliberately ,declared what the proper construction, should be,-.:which the words actionable, -and the words themselves, takenin connection with the entire discourse, and qualifyipgsen,tences being,as plaintiff alleges,'capahle of such constructi9n ,,is it noHqe duty of the court, upon demurrer, to accept the wnfitruction which plaintiff tQ the words? It seems clear tolmy mind that there is no other sensible view t<>,take. "Where is ambiguous"ao.d is as susceptible of a harmless as of an injurious meaning, it is tQe" function of an innuendo to point out the plaintitf;cJaims to be, the true and the meaning upqn, wMch he reUelJ ,to sustain his action. * * When the plaintiff, py innuel}do,.pu,ts s mellning on the language published, he is bound by it, that course may des,tr0y, his right to main· action." Townsh. Bland. &. L. § 338;.Starkie, Sland. & L. § .565.,., . . The JlI.eaning,of ther}'V:Qrds is. alleged to be "tha.tpIaintift' is guilty A the crime of. concocting ., bla,ckmail, or extortion scheme." This might as seriopsly reflecting upon the plaintiff's character.. But 1t is nol offense under. the .laws of the state. To concoct or s.cheme, simply imports the formation of splan or. pwposeto. money,. and does import any actual, wrl;mgflliuse of forcl;l, or .threats, orit11 ply any Qvertact whatever. A Illere "implication to commit a ciimeis ngt actionable." Townsh. &: · .Bland., L, §§ Bay, v.Hunt, 60 14 Rep; 785; Farmifl.g v.Ohp,ce, (R. 1.)

tti (control llnd, lessell the ·aaeusations made by, defendant,. and a'SceMitr'f'rOm the entire discourse whether or not the words were rea-

IN BE FOX

427

22 Atl. Rep. 275. The law upon this Bubjectis well stated in 13 Amer. & Eng. Ene. Law, 353: "Words which merely impute a criminal intention, not yet put into action, are not actionable. Guilty thoughts are not a crime. But as Soon as any step is taken to carry out such intention, as soon as any overt act is done, an attempt to commit a crime has been made; and every attempt to commit an indictable offe!1se is, at common law, a misdemeanor, and in itself indictaan attempt is therefore clearly actionable." ble. To impute The case of HCS8 v. Spark8, 44 Kan. 465, 24 Pac. Rep. 979, relied upon by plaintiff, is not in any respect in opposition to the views I have expressed. It was essentially different in its facts from this case. There the words spoken directly charged that the person alluded to was a blackmailer,-"What are you doing with that nine-dollar blackmail here?" And the innuendo set forth the meaning in clear, direct, and posilive terms, "meaning thereby that the said plaintiff had committed the offense of extortion of money from a person or persons by threats of accusation or exposure, or opposition in the public prints, and that she was a common bla'ckmailer and extortioner," Taking the innuendo in connection with the words charged, the court very properly held that the language imputed an offense punishable under the laws of that state. I do not deem it necessary, in deciding upon the demurrer, to discuss or review the other questions argned by counsel as to the meaning of the other words used by the defendant. It is evident that, with the meaning which the plaintiff placed upon the words which we have considered, the other portions of the language used do not import a charge of any punishable offense. The demurrer is sustained.

In re Fox.

(Dfstrict Oourt, N. D. Oalifornia. July 8, 1899.)
HA.BEAS CORPUS-JURISDICTION .OF STATE

Where a person, under bail to answer an indictment In a federal court, is 8ol'o rested on state process for a crime all;aiust the state, his confinement thereunder is not in violation of any law o.f the United States, and he is not entitled, as a matter of personal right, or at I,he instance of his sureties, to be released on lutbellS CorPlJR, and placed in the custody of the marshal. If the federal authorities do not insist upon the prior jurisdiction of the federal court, the accused and his sureties have no right to complain. U. S. v. French., 1 Gall. 1, followed. III 1'6 Neagle, 89 Fed. Rep. 81l3, distinguished. . . ,

COURTS-CRIMINAL LAW.

On Haheas Corpus. Prisoner remanded. GarroU Cook, for petitioner. John A. HOlfmer, Asst. Dist. Atty., for reslJondent. MORROW, District Judge. Mortimer Fox was, on the 13th day of December, 1891, indicted by the grand jury of this court lor otfensesagainst