#### The People of the State of New York, Plaintiff, *v.*James McLaughlin, Defendant.

(Court of General Sessions of the Peace in and for the County of New York,

January, 1901.)

Crimes — Libel — Presumption that it was injurious — Duplicity.

Where an indictment for a lihel upon a printing and publishing corporation sets the publication forth verbatim, the indictment need not state that the publication and the acts done thereunder bad a tendency to injure the corporation in its business, as that will be presumed.

Where such an indictment contains only a single count, it is not bad for duplicity in that it charges that the libelous statements were contained in a printed circular and also in a handbill, and particularly where it appears that only one of these instruments was published.

Demubbeb to indictment.

*692Benjamin. Patterson, for demurrer.

Eugene A. Philbin, district attorney (Henry W. Unger, of 'counsel), opposed.

Foster, J.

The indictment herein was filed June 18, 1900, and charges the defendant with libel (Penal Code, § 242), alleged to have been published against the Sun Printing & Publishing ' Company, in connection with recent “ labor troubles.”

The demurrer thereto was interposed June 27, 1900, and is upon the grounds:

“ First. It appears upon the face thereof, that the facts stated do not constitute a crime.”

*“*Second. It appears upon the face thereof that more than one crime is charged in the indictment, within the meaning of sections 278 and 279 of the Code of Criminal Procedure.”

As to the first ground:

From the argument and the exhaustive and able brief submitted in support of the demurrer, it appears that the indictment is deemed demurrable because it nowhere states that the acts, alleged to have been done by the defendant, and the publication, which is set forth verbatim in the indictment, are not therein and *in terms*stated *“*to have a tendency to injure the complainant in its business.” Section 275 of the Code of Criminal Procedure, which provides what an indictment must contain, only requires in addition to the title “A plain and concise *statement of the act*constituting the crime, without unnecessary repetition,” and section 284 provides that an indictment shall be sufficient if it can be *understood*therefrom (among other things) “that the *act or*omission, charged as the crime, is plainly and concisely set forth, and with such a degree of certainty, as to enable the court to pronounce judgment, upon a conviction, according to the right of the case.” Section 286 further provides that " *Neither presumptions of*law, *nor matters of which judicial notice is talcen, need he stated*

An indictment is never to be held insufficient by reason of form unless prejudicial to the *substantial rights upon the merits*of the defendant. Section 285. The function of the indictment is, first, to charge the defendant with a crime, and second, to give the defendant notice of the precise acts constituting such crime, to the end that he may be enabled properly to defend the same. People *693v. Dumar, 106 N. Y. 502. “ The publication of a libel is a wrong and the person against whom the article is directed is presumed to hare sustained damage, irrespective of the intent of the publication.” People v. Sherlock. Opinion of McLaughlin, J., N. Y. L. J., Jan. 8, 1901. From “ the face of the indictment” (containing as it does, the entire publication alleged to be libelous), it may be presumed as a matter of law, and the court may take judicial notice, that the publication had a tendency to injure the complainant corporation in its business. The omission referred to may, therefore, properly be deemed a matter of form or presumption of law, which as I have shown need not be stated.

As to the second ground:

It is further contended that this indictment is “ bad for duplicity,” and is obnoxious to section 278 of the Code of Criminal Procedure, which provides that the indictment must charge but one crime and in one form, except, when the acts complained of may constitute different crimes, and then they may be charged in separate counts. Section 279. There is but one count in this indictment, and it charges that the alleged libelous statements were contained in a *“*printed *circular-and*handbillThe “ duplicity ” assigned, forsooth, is that “ a circular is one thing and a handbill another ”, and it is contended that the indictment should contain separate counts charging the publication in one count of a circular, and- in another of a handbill. It appears that only one instrument alleged to be libelous was published. The words used in an indictment must be construed in their *“*usual acceptation in common language.” Code Grim. Pro., § 282. The genius of our law, and the whole tendency of modern practice, as well as the express provisions of our various codes overlook mere matters of form and consider only the substance thereof. The refinements and technicalities of the common law, happily, no longer prevail. The words referred to in their *“*usual acceptance in common language ” are synonymous. It is frittering away time to consider the exquisite distinction which the defendant suggests. It is precisely the distinction that exists between “ tweedledum and tweedledee.”

For these reasons the demurrer is overruled.

Demurrer overruled.