, 1878-02-09
Decision OF judge Lewis.

|
TEzRITogy vs.. PRosCH-Indctment for Libel
Motion to quash Because the in
dictment cannot be proceeded with
adyantageously to public justice,
there being no law authorizing a
Judgment to be rendered for the of
fense attempted to be charged. Be-
cause the indictment contains no
averment that defendant wilful!y
published the libel.
Questions presented are of much
importance, and necessarily involve
the construction of the repeating
act of the Criminal Practice act OF
1878, section 325, as also section 81
of act of 1873.
In 1869 the Legislature enacted
statute defining libel and providing
for the punishment thereof. The
repeating clause Of act of 1878 re-
peals "all laws heretofore enacted
upon any matter provided for by
this act" and thereafter judgmests
shall only be pronounced and enforced
for crimes and offences prescribed By
this act."
Section 9 of the act of 1878 pro-
fvides that "ofences cognizable at
common law. if not controlled by
statute may be indicted in the Dis
trict Court"
The act of 1873 is an ''act relative
to crimes and punishments and pro-
ceedings in criminal cases."
( The first question to be determin-
ed is, was the act of 1869 repealed
by the act of 1873.
The act of 1873 repeals all acts
before enacted prosided for by the
act of 1878.
Counsel for the Territory insist
| that the act of 1869 was repealed by
I the provisions Of section 1876, act Of
1878. It is not claimed that there
is on express repeal, but repeal by
implication. Rnle is elementary
that repeals by implication are not
| favored.
Sedg. Stat. Conn. 105.
The repeal is Of all laws before
enacted, upon any matter progided for
by the act.
A careful examination of act of
1873 discloses that no provision is
therein made as to the crime of Ii
bel; no mention is made touching
the punishment of libel or the de-
fnition thereof. It is urged, how
ever, by counsel. that this being an
offense at common law, is provided
by section 9 Of the act of 1878.
Noting the language of this sec
ton "offenses cognizable at COM
mon law if NOS controlled by statute
now here we have an express statute
defining libel. Hence the definition
of this offense is wholly and speci-
ally controlled by this statute of
1869, which is in no wise in conflict
with the provisions of the act of
1873. We are bound to uphold the
act of 1869, if the two acts may sub
sist together.
am fully convinced that the act
of 1869 is not repealed by that of
1878, and hence to that act we must
look for a definition of this offanse.
Libel, therefore, is here statutory
crime, the punishment whereof was
fully provided for by the statute of
1869, and unless provision now ex-
lists under the statute for the pun
ishment of the offense, this Court
cannot pronounce and enforce iudg-
ment therefor.
At the May term. 1874, of the Dis
trict Court of the First Judicial Dis
trict of Walla Walla, at which time
the writer was the presiding Judge,
a party was convicted of the offense
of libel, and ON motion in arrest OF
judgment, it was held by the Court
that under the repeating clause of
the act Of 1878, section 325, no
judgment could be pronounced and
enforced for the crime of libel since
the enactment of the statute of 1878.
The defendant was discharged. 1
ana fully convinced that such de-
cision was correct, and as the law
has not been changed. we have no
criminal law in force within this Ter
ritory for the punishment of libel.
1 am fully confirmed In my opinion
that it is the Legislative will that
the publication of libel shall not
be punished under our criminal law,
not only from the laws upon the
subject enacted in 1869 and 1878.
but from the further fact that bills
providing for such punishment were
introduced at the sessions of 1875
and 1877, which failed to receive the
Legislative sanction, thereby ex.
pressly showing that they wished no
law upon the subject.
The language of the act of 1878 is
broad and plain. No judgment can
be pronounced for crimes unless the
offense be prescribed by the act of
1873" As we have seen, both the
crime and punishment for libel are
prescribed by the act of 1869; hence
no Judgment can here be pronounc-
ed for such offense.
The remaining question is, wheth-
er the Court will proceed with the
trial of an indictment upon which
no judgment can bs pronounced
against the defendant if he be found
guilty.
It is stated by Bishop that sswhen-
ever. for any reason which seems
good to the Court, an indictment
cannot be proceeded with advantag-
eously to public justice. the presid-
ing Judge may in his discretion
quash it."