The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-03-10

puy q privsty any lottery game q device sechanoe,
se{ IVY g sana vhassesves, O. b whasever nans y
sais s.,ling dsposns my hou.cs isnds tensnsnt
Or re. etsss or any money goods things In action
punAhment (see vol !, pages ees, ees, r. L. ID edL
ticn--SN Sd edit) In the year 1888 Ssee page 4s4
snn %
This law and the decision Of tine Supreme Court in the
case Of the People against Strevant" (sec sd wcn-
DELL page 418) establish unqualified prohibition Of the
sale Of lottery tickets in this State ny constitution
Of 1876 Of this state lotteries and tho sale OF lottery
1O and by the Revised Statutes Of 1880 sce vol / page
S4f Sd edit is made the duty Of the presiding maes
inquire into any violations Of the laws against lotteries
The nature Of the offence aud the Importance attached
by the people at large and by the Legislature its
chevous effects, thus made explicitly manifest By
comparing the above mentioned laws Of the State with
the avermcnts In the indictment tho violation those
laws found TO be clearly charged Tho act of adopting
aprovon in the constitution Of the Association Tor tho
distribution by lot Of the works of American art prnc
paa paintings each member having share every
five dollars paid by hmthe act Of subscriptions being
received and paid to the treasurer under the direction
the committee Of management consisting Of the twenty
one persons concerning whom the publication is alleged
in the year 1851 to the fifty thousand dollars
and rising ench subscriber being entitled distribution
ey lot FOR every five dollars paid by hiare violations
OF the law, and utterly unlawful This portion
dctmcnt therefore, must be regarded fatally defective
But these unlawful proceedings do not do any pro-
ceengs set forth in the Indictment evidence that tho
laws relative to the association for the sole purpose
of obtaining object which unconstitutional ille
laws import such object but import audabc object
the promotion Of the fine arts. Tho laws contain
nothing which imply any other than lawful and
mendabe purpose So far appears by the Indictment
these laws except much may be regarded void
uncertainty, valid. The proceedings above men
toned. under color Of those laws. and by their
authority, unlawful Considering, then the aver
ments in the Indictment Of the aforementioned I'M
lawful acs as rendering that portion Of the indict
reference to the libel alleged in the Indictment Il
will be perceived that the title of it. therein stated
the averments in the Indictment Of their truth The
indictment charges that the publication entitled The
Art Union Lottery Distribution Postponed" and agair
after the first sentence OF the first part Of the publication
viz. I've perceive that the distribution of the Art
Union paintings the nuendo in the indictment explains
the passage thus -
Meaning the paintings which, according the said acts
Of the Legislature and the aforesaid constitution by
laws, to be distributes among the members Of the
Der 1851 = w. - ''''' annual inviting IN De'sm-
Here then Is allegation in the indictment after the
Introductory matter and in confirmation of the aver
mens therein made of the existence Of constitution
and bylaws by which the distribution 6y 10, to
made The allegation that such distribution was to be
made according 10 the of the Legislature is plainly
wrongnothipg appears in those acts this
ment This allegation is clearly defective it fact charges
the laws with authorizing the commission of an unlawful
act In reference to the aterality of the Introductory
aycrmcnts to support the Indictment the Supreme Court
of the State in the Of Miller against MAXWELL (see
vol 16 page l. of Wendcl) decided that the extrnsc
facts incorporated thus 1t into the defendants
publication became integral part of the plaintiffs
case and the whole forms entire landerous charge
the face Of record 1t is true that civil actions and
criminal actions, in respects, rest upon distinct
principles and since the adoption of the Code in civil
practice statement Of extrinsc matter in the declara
ton unnecessary see page 81 section 164 OF Code of
1S5 but the principles of pleading criminal cases are
unchanged and laid down in the last mentioned
are applicable to indictments and according that
cison the Introductory aycrments in this case are
material. and necessary to support the indictment.
One other of the grounds upon which the application
made Is that the indictment alleges imputations by the
libel against the persons of and concerning whom &c.
of not doing having done that which it Is unlawful
TO do and herein is defective So far the publication
alleges this objection well taken except in the
title OF the article, and in the first sentence the meaning
Of which is explained by the nnuendo above mentioned,
there nothing apparently stated 1t is contendcd
that the remark in the libel that the statement Of
for the postponement is not only false, but
mpudent is only expression of opinion in discour-
eo terms and is not beous For the author to allege
that reasons given BY persons and then to charge
that those reasons false and impudent would in
indictment that IL otherwise sufficient be tensble The
queons would be Tor jury to determine The objection
that for want Of aveent the terms abolition
clique are not beous well taken those terms and the
term abolition imply scandal, although they may
in tho hands Of liui writer be employed offensive
and injurious sense further objection put forth is that
the libel against class of men, and not specific enough
fix any individuals of that class does not bear
against particular individuals but is against particular
order that descend particulars or individuals
an therefore does not tend TO breach Of the peace
Ey the dica Of Judge Thomson In the case OF su,n
against Bue az johnson, 477) this position upon
the faith Of English decision g Salk 2J) is
tanned but III late edition Of Burns vol, 1901, the
w
sound not the order If meant by the decision
probably general than the directors Of particular
whom when article is published read. reader
would nnturallye and reasonably apply the remarks
applicable to such directors as q body Had the
article mentioned the directors CT such kind of associ
atoms generally. this probably would be the order
men to whom the decisions last mentioned refer.
In this the OF only the title and two alb
sract parts Of the publication in the indictment leaves
undcoscd what Is its whole context In the latter of the
two parts set forth tho remark that perhaps the diver
of tha mi tp 10 MI fhad
but Is well known TO the abolition clique in the direction
conveys clearly the idea that the portion Of the pubc-
ton to which this remark applies does not al the
directors named in the indictment but only portion Of
Mcnwbat portion. who which Of them cannot for
want oil suncent secifcac be designated so far there
FORE the objection refers the portion Of the pubca-
ton which the remark refers the objection well taken
The preeenment in the Indictment that by the subscrp-
lions and payments for the year 1851 to the Treasurer
under the direction &C. Of the twentyone persons the
Committee of Management to the amount Of $4,000 and
rising though literal admission Of the truth of the
remark in the publication that they had received Sol
clearly implies its substantial truth and the present
ment that the purchase production and time and mode
Of distribution Of the works Of art should be published
for the information OF the members aud of the public &c
neray is in effect admission it necessary of the
truth Of the remark in the publication that directors
Of public institution they arc amenabe TO the public
for the management conducted under their name This
portion conceded on the argument but the latter
part Of this remark clearly meaning qualifying
the in which the remark Is intended and ncgaving
the idea that ell the directors TO be regarded
as actors So far the averments IN the libel ir
those aycrments are 10 prevail in opposition to
any general ayerments Of the libel being false The
Truth established good motives will be implied
Root against King, Cowcn 6iS). As to the portions
Of the publication which not by the nverments
in the indictment presented TO be true and TO which
the objections taken no tcnc BIZ" they would fall pro-
rey 10 the province Of the jury could the indictment be
otherwise sustained Ii may be said respects the por
lions Of the publication the truth Of which is thus pre-
sented that thee are only abstract parts Of the belous
matter set forth in the ndict and that the whole
such matter regarded together might convey different
view mcanng and therefore should be pas upon by
auy IN answer to this it is TO be observed that the whole
publication j. not prof sscdy set forth in the Indictment
but only the title and the two several abstract parts
aforementioned This is allowed BY llw(See Wharton.
so and Barbour 22l Though the application Of this
privilege Of practice may often the injustice of
reling the sccufed 10 submit to trial. when if this
iois pvJicdop aycments showing that such portion
omitted does vary the and meaning Of the
part set forth in the indictment required to be
spread out in the indictment such trial might be found
unnecessary. The understanding of the whole bearing
end meaning Of article when only abstract parts OF it
ire given. di7ioncd from the other portions. in
10 tr..a