#### Hyde, Plaintiff in error, vs. The State, Defendant in error.

*January 15*—

February *9,*1915.

*Constitutional law: Freedom of speech: Criminal slander: Evidence: Instructions to jury: Harmless errors.*

1. Sub. 2, sec. 4569, Stats., making it a misdemeanor for one person to slander another, is not an abridgment of freedom of speech as guaranteed by sec. 3, art. I, Const.

2. In a prosecution under sub. 2, sec. 4569, Stats., it is not necessary to prove that the reputation of the slandered person was in fact injured or impaired, it being sufficient that the slanderous words “expose him to hatred, contempt, or ridicule.”

3. It is sufficient for a conviction in such a case that a substantial portion of the words charged in the information be proved to have been spoken substantially as charged, although there may be slight differences in the form of expression.

4. The mere fact that an instruction was somewhat confused in its language is immaterial where it must have been understood by the jury in its proper sense.

ERROR to review a judgment of the municipal court of Brown county: N. J. MoNAhaN, Judge.

*Affirmed.*

The plaintiff in error seeks to reverse a judgment of conviction under sub. 2 of sec. 4569 of the Statutes, which reads as follows:

“Every person who, in the presence and hearing of another, other than the- person slandered, whether he be present or not, shall maliciously speak of or concerning any person, any false or defamatory words or language which shall injure or impair the reputation of such person for virtue or chastity or which shall expose him to hatred, contempt, or ridicule shall be guilty of a misdemeanor for which said person shall be punished as heretofore provided in subsection 1. Every slander herein mentioned shall be deemed malicious if no justification therefor be shown and shall be justified when the language charged as slanderous, false, or defamatory was true and was sjioken with good motives and for justifiable ends.”

The punishment provided by the law for violation of this subsection is imprisonment in the county jail not more than *652one year or fine not exceeding $250. Tbe jolaintiff in error was fined $50 and costs, amounting in all to $128.Y8. Tbe words charged to have been used by tbe plaintiff in error were words ascribing to one Cunningham acts of obscene degeneracy, which it is unnecessary to print. Three witnesses testified to a substantial part though not the entire language charged, while the defendant and one witness testified to the contrary. -

Exception was taken by the defendant to the following paragraph of the judge’s charge :

“To authorize a verdict of guilty in this case it is not necessary that all the slanderous words alleged in the information should be proved, and in this case if the jury believe from the evidence that a sufficient number of words charged in the information and the charge of immoral conduct against Edward P. Cunningham to have been proved as spoken by the defendant as charged in the information beyond all reasonable doubt, then the jury should find the defendant guilty.”

*G.*IT. *Lomas,*for the plaintiff in error.

For the defendant in error there was a brief by the *Attorney General*and *J. T. Dithmar,*assistant attorney general, attorneys, and *M. E. Davis,*district attorney, of counsel, and *oral*argument by *Mr. Dithmar.*

WiNsnow, C. *J.*

In this case it is held:

1. The statute in question is not an abridgment of freedom of speech as guaranteed by the constitution. Freedom of speech does not include license to slander.

2. It is not necessary in a prosecution under this statute to prove that the reputation of the slandered person was in fact injured or impaired. If the slanderous words *“expose*him to hatred, contempt, or ridicule” the offense is committed. This is the plain reading of the statute and in analogy to the law of criminal libel.

3. The instruction excepted to was somewhat confused in its language, but under the evidence could not have misled the jury. It must have been understood to mean that if a *653substantial portion of the words charged in the information were proven substantially as charged, it would be sufficient though there might be slight differences in the form of expression. This is a correct statement of the law. *Kloths v.*Hess, 126 Wis. 587, 106 N. W. 251; *Earley v. Winn,*129 Wis. 291, 109 N. W. 633; *Greeler v. Redmond,*154 Wis. 503, 143 N. W. 152.

*By the Court.*— Judgment affirmed.