Opposition Brief — Sachs v. Government of the Canal Zone

1

1

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i UN MND, ccc duc s ca cs snsseavesasa sevens 2

ER ee es eee Se en nn nae ea pees 2

BET ARS Sele ae aati RAS AE CEN CARD AS ASSESS ONS 5

EE RN MIDS hs Ap I ae eee ean 14

: EGS et epee ye rer er es 15

CITATIONS

Cases:

Be Ballard v. United States, 329 U. S. 187................. 7

ag Berger v. United States, 295 U.S. 78.................. 13

Commonwealth v. Welosky, 276 Mass. 398, 177 N. E. 656,

certiorari denied, 284 U. S. 684 .................... 8

Coz v. First Mortgage Loan Co., 173 Okla. 392, 48 P. 2d

Rae, OR eee ee ca ab Nacspas ue ucatss 10

a Crouch v. United States, 168 F. 2d 866................ 8

‘qi ed an vvicusdegnehes 8,9

e ee ee Se RS eee 8

Gibson v. Mississippi, 162 U. 8S. 565....... 2... ........ 8

4 Glasser v. United States, 315 U. S. 60.................. 13

Government of the Canal Zone v. Nelson Rounsevell,

a in ain sk eak pce cheo nae nies sss 10

Se a, ME EE Oe WN ID, vicid na wav ccnp ddee cuwasi 6

a ee ere ee 10

Haywood v. United States, 268 Fed. 795, certiorari de-

oa a hnika tn oho \ CET SOURERS 68 0A 6

International Longshoremen’s & Ware. Union v. Acker-

5 3 fy ee rer reer 8

F Jackson v. State, 50 Okla. Crim. Rep. 422, 298 Pae. 313. . 1l

4 Johnson v. Sanford, 167 F. 2d 738.................... 8

Leavy v. State, 45 Ga. App. 574, 165 S. E. 470.......... 10

Lynett v. Huester, 322 Pa. 524, 185 Atl. 835............ 10

People v. Miller, 122 Cal. 84, 54 Pac. 523.............. 10

< People v. Strauch, 247 Ill. 220, 93 N. BE. 126............ 11,12

y People v. Talbot, 196 Mich. 520, 162 N. W. 1017....... 11

8 People v. Taylor, 279 Ill. 481, 117 N. E. 62............ 11

Raymond v. United States, 25 App. D. C. 555, certiorari

8 eA RT nn yee 13

Remus v. United States, 291 Fed. 501, certiorari denied,

_ & & A SPP ra red. Fe eee 6

Schmuck v. Hill, 2 Neb. (Unof) 79, 96 N. W. 158....... 10

Silverthorne Lumber Co. v. United States, 251 U.S. 385.. 5,6

(i)

INDEX

Cases—Continued Page

State v. Cramer, 193 Minn. 344, 258 N. W. 525......... ll

State v. Elder, 19 N. M. 393, 143 Pac. 482............... 10

State v. Fosburgh, 32 8. D. 370, 143 N. W. 279.......... ll

State v. Herman, 219 Wisc. 267, 262 N. W.718......... ll

State v. Huston, 19 8S. D. 644, 104 N. W.451............ 10

State v. Mason, 155 Ark. 189, 2448. W.6.............. ll

State v. Piver, 74 Wash. 96, 132 Pac. 858.............. 10

Thiel v. Southern Pacific Co., 328 U. 8. 217............ 7

United States v. Press Publishing Co., 219 U.S.1....... 8,9

United States v. Smith, 173 Fed. 227.................. 8,9

United States v. Williams, 3 Fed. 484.................. 9

Viereck v. United States, 318 U. S. 236................ 13

Williams v. United States, 168 F. 2d 866............... 8

Willow Creek, In re, 74 Ore. 592, 144 Pac. 505.......... 10

Wilson v. United States, 221 U. S. 361................ 6

Statutes and Rule:

Canal Zone Code, approved June 19, 1934, 48 Stat. 1122:

Title 1:

UE ee alate Cols Ob tn a ang wake a oh wm 15

Title 5:

ER EAE Ck 6 65 e kW Keb NN Kos tas sees LO 9,15

sy Aaa SPEAR er rep a eae 9,15

BRT ess Lee bt k 1a nc Rely Uy enka 11, 16

DE Sets Oh Ce Ae Gack ens cau ak baba SOY 9, 16

Mt Gar Feat CY Oe Ue ok 5 ames KRRie 16

PME aN el enol hein t c.k wake wa 0 es okie 16

Title 6:

ioe cs as ki ss Ok ve SNe A RU Le eee 10, 17

NE rialta bat view se kc ak wees S's kw wale ee 10,17

SU hens Ge teak davh chu bS Na oe ee oe ae 9, 10, 17

EO Gi ie wcrc ARAN GCNISK pune aea vali 10-11, 18

RE ea er Or rg tan ke eee 11,19

Thee tee Pence hod ee obits kokate 5

MUNN Se ieee LOCK hou et tk ek ek wees 5

Title 7:

EE 0 BaF icgtaacacg ss kONAd ndekeweck ane 8,19

Rules of the United States District Court for the Canal

Zone, Part V, Sec. 1, effective August 1, 1945........ 8, 20

eal

Inthe Supreme Gourt of the Wnited States

OctToBER TERM, 1949

No. 267

JOSEPH SACHS, PETITIONER

v.

THE GOVERNMENT OF THE CANAL ZONE

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (R. 301-314)

has not yet been reported.

JURISDICTION

The judgment of the Court of Appeals was

entered July 19, 1949 (R. 315). The petition for a

writ of certiorari was filed August 15, 1949. The

jurisdiction of this Court is invoked under 28

U. S. C. 1254(1). See also Rules 37(b)(2) and

45(a), F, R. Crim. P.

(1)

2

QUESTIONS PRESENTED

1. Whether petitioner has any standing to com-

plain against the admissibility of a statement given

by his stenographer to the prosecuting authorities

prior to the trial on the ground that it was made in

response to an allegedly illegal subpoena.

2. Whether petitioner’s rights were violated be-

cause only men were eligible for service on the jury

which tried him.

3. Whether there was a publication of a criminal

libel where the libelous articles were printed in

Panama City, Panama, and circulated in the Canal

Zone.

4. Whether it was necessary that the information

against petitioner allege in detail the manner of the

publication and the persons to whom it was made.

Dd. Whether petitioner was entitled to adduce evi-

dence calculated to show provocation leading up to

the alleged libel without first establishing its truth.

6. Whether the government attorney was guilty

of prejudicial misconduct at the pre-sentence hear-

ing.

STATUTES AND RULE INVOLVED

The pertinent provisions of the Canal Zone Code

and the Rules of the District Court for the Canal

Zone are set out in the Appendix, pp. 15-20, infra.

STATEMENT

Petitioner, the international representative of the

United Public Workers, C. I. O., a iabor organiza-

3

tion with a local union consisting of native Pana-

manians and West Indians employed in the Canal

Zone (R. 170), was charged by information with

publishing and circulating a criminal libel of and

concerning Daniel E. McGrath, District Attorney

for the Canal Zone, in violation of Title 5, Sections

351 and 352, Canal Zone Code (R. 1-3). MeGrath’s

actions in instituting, on December 29, 1947 (R. 45,

46), a prosecution for forgery of a local union check

against one Nolan, treasurer of the local, precipi-

tated the events involved in this case. Subse-

quently, on February 27, 1948, Nolan was convicted

on that charge (R. 196) and he was sentenced to

imprisonment for one year (R. 190).

The evidence adduced in support of the charges

of the information may be summarized as follows:

On February 4, 1948, at about 10:00 a. m., in the

union office in La Boca, Canal Zone, petitioner gave

to Miss Harewood, a stenotypist and translator em-

ployed in the office (R. 76), a text of a speech in

English which he directed her to translate into

Spanish for release to the press (R. 77). Between

7:30 and 8:00 p. m. that evening, petitioner deliv-

ered a speech over radio station HOG in Panama

City, Panama (R. 125), which was heard in the

Canal Zone (R. 105). This speech included the

libelous words which accused the District Attorney

of obtaining ati affidavit ‘‘figuring in’’ the Nolan

ease ‘“‘through trickery and duress’? and of an

attempt to ‘‘bribe [Nolan] with a suspended sen-

tence if he would enter a guilty plea and promise

4

not to take civil action against you [i.e., McGrath]’’

(R. 2, 106-107, 131, 233-238). Later that evening,

about 9:00 p. m., in Panama City, petitioner gave

to one McKabney, a radio announcer at station

HOG, the original text of the speech (R. 124, 126).

McKabney had copies made (R. 128, 132, 233-238),

one of which he delivered to the editorial office of

the ‘‘Panama American,’”’ a newspaper published

in Panama City (R. 128). Another copy was ob-

tained by one Payne, an employee of the ‘‘ Nation”’

(R. 109, 129), a bilingual newspaper published in

Panama City (R. 102).

The next day, February 5, 1948, at about 9:00

a. m., in the union office in La Boca, Canal Zone,

petitioner ordered Mrs. Reid, the office manager

(R. 56), to translate into Spanish a writing in

English which contained the libelous words (R.

59, 60, 78). After this writing was translated by

Mrs. Reid, it was inserted into the speech by Miss

Harewood (R. 61, 78, 226-232). Petitioner told

Mrs. Reid to send the completed version to all the

newspapers (R. 66), which she did (R. 61). Later

that morning, about 9:30, in the union office, peti-

tioner gave to Mrs. McIlhenny, a reporter for the

‘**Nation,”’ a copy of the complete speech (R. 63,

71). That day the ‘‘Panama American’’ and

‘*Nation,’’ which circulated in the Canal Zone,

reported the speech, including the libelous words

(R. 130-133, 225-226, 238-239).

Petitioner was found guilty after a jury trial

(R. 26), and following a pre-sentence hearing be-

—

5

fore the trial judge on circumstances in aggrava-

tion or mitigation of punishment, pursuant to Title

6, Sections 494 and 495 of the Canal Zone Code (R.

157-206), he was sentenced to 9 months’ imprison-

ment in the Canal Zone penitentiary (R. 206-207).

On appeal, the conviction was affirmed by the

Court of Appeals for the Fifth Circuit (R. 315).

ARGUMENT

1. Petitioner contends (Pet. 12-14) that the

prosecuting attorney illegally obtained evidence by

subpoenaing and taking the statement of Miss

Harewood prior to trial and that the Court of Ap-

peals’ ruling that this was no invasion of his rights

and consequently furnished no basis for objection

to use of the statement at the trial (R. 306-307) is

contrary to the principle of Silverthorne Lumber

Co. v. United States, 251 U.S. 385. This conten-

tion is without merit.

The statement in question was made by Miss

Harewood on June 12, 1948 (R. 89). Petitioner

had been committed on a complaint on March 31

(R. 10) and the information was filed on April

13 (R. 1). Miss Harewood, who was called on be-

half of the government at the trial (R. 75), proved

to be a hostile witness and government counsel

thereupon requested and received permission from

the court to cross-examine her (R. 81, 86). It was

in connection with such examination, and for im-

peachment purposes, that the statement was offered

and admitted (Compare R. 80-81 with R. 89, 90-

6

91; R. 92). Petitioner does not claim that the

statement was not admissible for that purpose.

The Silverthorne case is wholly inapposite.

There, papers and documents had been seized ille-

gally ; here, only a pre-trial statement of a witness is

involved. There, ‘‘all the papers had been seized in

violation of the parties’ constitutional rights’’ (251

U.S. at 391) ; here, Miss Harewood was not a party.

The identity which petitioner attempts to establish

between Miss Harewood and himself (Pet. 12) is

illusory because the record does not show that the

local union was a corporation, that petitioner was

an officer of the local union, that any information

given by Miss Harewood to the prosecuting attor-

ney was property of the local union, or that peti-

tioner had any proprietary right to information

Miss Harewood possessed. Under these circum-

stances, if there was any invasion of constitutional

rights, which we do not for a moment admit, the

right to complain belonged solely to Miss Hare-

wood,’ not to petitioner.

Other reasons assigned by petitioner for sup-

pressing the alleged illegally obtained statement

(Pet. 13) are without substance, and petitioner

fails to cite any authority supporting them.’

* Cf. Wilson v. United States, 221 U.S. 361; Hale v. Henkel,

201 U. S. 43, 69-70; Remus v. United States, 291 Fed. 501, 511

(C.A. 6), certiorari denied, 263 U. S. 717; Haywood v. United

States, 268 Fed. 795, 804 (C.A. 7), certiorari denied, 256 U. S.

689.

2 (a) The civil suit was entirely separate from and immate-

rial in the instant criminal case (R. 48).

(b) The statement of Miss Harewood (R. 241-249) was

7

2. Petitioner concedes that he had no constitu-

tional right to a trial by a jury including women,

but he argues for the right to have women qualified

for such service in order to assure an impartial

jury drawn from a cross-section of the community.

He relies upon Ballard v. United States, 329 U.S.

187, and Thiel v. Southern Pacific Co., 328 U.S.

217 (Pet. 14-17).

In the Ballard case, supra, California law had

qualified women for jury service, and Congress had

provided by Section 275 of the Judicial Code that

jurors in a federal court should have the same qual-

ifications as those of the highest court of law in the

state. Therefore, since women had been excluded

from the jury panel contrary to the federal statute,

the conviction was reversed. However, there is no

statute similar to Section 275 of the Judicial Code

applicable in the Canal Zone and no statute or rule

of court making women eligible for jury service.

Thiel v. Southern Pacific Railway, supra, is also

clearly not in point, for it involved an entirely dif-

ferent set of circumstances whereby all persons who

worked for a daily wage were excluded from jury

service.

Petitioner did not have any absolute right to in-

clearly material on the issues in the instant criminal case.

(ce) Petitioner’s statement of the government attorney’s

“reliance upon the fact that only the rights of colored persons

were involved” (Pet. 13) is not supported by a fair appraisal

of the record, and Exhibit K (R. 249-250), cited by him, is

a bulletin of his own union giving a self-serving version as

to the government attorney’s position on the motion to suppress

Miss Harewood’s statement.

an

8

sist upon having women on the jury panel. See

Fay v. New York, 332 U.S. 261, 289-290; Gibson

v. Mississippi, 162 U.S. 565, 580; Commonwealth

v. Welosky, 276 Mass. 398, 177 N.E. 656, certiorari

denied, 284 U.S. 684; International Longshore-

men’s & Ware. Union v. Ackerman, 82 F. Supp. 65,

122 (D. Hawaii) ; Johnson v. Sanford, 167 F. 2d 738

(C.A. 5); Crouch v. United States, 168 F. 2d 866

(C.A. 5; Williams v. United States, 168 F. 2d 866

(C.A. 5). The only qualifications for jury service

prescribed by Title 7, Section 34, Canal Zone Code,

p. 19, infra, are citizenship and residence. And it is

clear from a reading of this statute that Congress

contemplated that the district judge should imple-

ment it by court rules prescribing additional quali-

fications. This the District Court has done by Part

V, Section 1 of its rules, pp. 19-20, infra, prescri)-

ing the following qualifications: ‘‘male sex; age of

twenty-one years or over; ability to read, write,

and understand the English language ; intelligence,

sobriety, discretion, and impartiality.”’

3. There is no merit in petitioner’s contention

(Pet. 17-20) that there was only circulation, not

publication, of the libel in the Canal Zone, and that

since the Canal Zone Code does not specifically pro-

scribe circulation, no crime was committed. To

support this argument, petitioner relies upon

United States v. Press Publishing Co., 219 U.S. 1;

United States v. Smith, 173 Fed. 227 (D. Ind.);

and In re Dana, 68 Fed. 886 (S.D.N.Y.). The

pele

9

first case cited is not in point because the New

York statutes involved there distinguished between

‘‘eirculation’’ and ‘‘publication,’’* whereas there

is no comparable distinction in the Canal Zone

Code. Inthe Smith and Dana cases it was held that

a libel published elsewhere and circulated in the

District of Columbia was not prosecutable there,

but it did not appear that District of Columbia law

made it a crime to circulate a libel within the Dis-

trict. Here, on the other hand, Tiiie 5, Section

355 of the Canal Zone Code, p. 16, infra, ‘‘ Publica-

tion defined,’’ provides that ‘‘It is enough that the

accused knowingly parted with the immediate cus-

tody of the libel under circumstances which exposed

it to be read or seen by any other person than him-

self.’’ When petitioner gave copies of his libelous

speech to MeKabney (R. 124, 126) and Mrs. MclIl-

henney, a reporter for the ‘‘Nation’’ (R. 63, 71),

he knew and fully intended that the libel would

be published and circulated to reach persons in the

Canal Zone, and was liable for all subsequent pub-

lications which were the natural result of his act.‘

3 “Sections 249 and 250, in substance, provided that where

a person libeled is a resident of the State the prosecution shall

be either in the county of such residence or the county where

the paper is published, and that where the person libeled is

a non-resident the prosecution shall be in the county in which

the paper, on its face, purports to be published, or, if it docs

not so indicate, in any county in which it was circulated.”

219 U. S. at 14, italics supplied.

*The use of the word “circulate” in the information (R.

1-3), although not included in Title 5, Sections 351 and 352,

Canal Zone Code, pp. 15-16, infra, was permissible under Title

6, Section 184, Cana! Zone Code, pp. 17-18, infra. The word

“publish” is synonymous with “circulate.” United States v.

10

Schmuck v. Hill, 2 Neb. (Unof) 79, 96 N.W. 158,

159. Petitioner was guilty of criminal libel even

though the newspapers circulating in the Canal

Zone in which the libelous speech was printed were

published in Panama City. See Haskell v. Bailey,

63 Fed. 873, 875 (C.A. 4) ; State v. Piver, 74 Wash.

96, 99, 132 Pac. 858, 859; Leavy v. State, 45 Ga.

App. 574, 581, 165 S.E. 470, 473; State v. Huston,

19 S.D. 644, 104 N.W. 451; People v. Miller, 122

Cal. 84, 92-93, 54 Pac. 523, 526-527. See also Gov-

ernment of the Canal Zone v. Nelson Rounsevell,

Criminal No. 2762 (D. Canal Zone, 1935).°

4. Petitioner’s attack on the information for

failure to contain allegations as to the manner

of the publication and to whom made, in alleged dis-

regard of Title 6, Sections 181 and 183, Canal Zone

Code, p. 17, infra, is without merit (Pet. 20).

These sections must be read together with the ac-

companying Sections 184 and 187, pp. 17-19, infra,

and when this is done it is clear that the informa-

tion enabled petitioner as ‘‘a person of common un-

Williams, 3 Fed. 484, 486 (E.D.N.Y.); Coz v. First Mortgage

Loan Co., 173 Okla, 392, 394, 48 P. 2d 1060, 1063; Lynett v.

Huester, 322 Pa. 524, 530, 185 Atl. 835, 837; In re Willow

Creek, 74 Ore. 592, 620, 144 Pac. 505, 515; State v. Elder,

19 N.M. 393, 402, 143 Pac. 482, 485.

5In the Rounsevell case the court held: “If a newspaper

containing a libelous article is circulated within a particular

jurisdiction, the libel is ‘published’ within such jurisdiction,

even though printed elsewhere, and the Courts thereof may

proceed to try and punish the person committing the “bel.

People v. Seeley, 72 Pae. 834; People v. Miller, 54 Pac. 523.

The Court is of the opinion that the use of the words ‘publish

and circulate, and procure to be published and circulated’ were

not separate offenses * * *.”

11

derstanding to know what is intended,’’ Section

187 (f), infra, p. 18.

It is sufficient for the information to state gen-

erally that the libel was published concerning the

District Attorney, and extrinsic facts to show the

application of the defamatory matier to him was

properly left to be supplied by evidence at the trial.

Title 6, Section 201, Canal Zone Code, p. 19, infra;

State v. Cramer, 193 Minn. 344, 346-347, 258 N.W.

525, 526. It was also not necessary for the infor-

mation to specify the person or persons to whom

the libelous statement was made. Jackson v. State,

50 Okla. Crim. Rep. 422, 426-427, 298 Pac. 313, 315;

State v. Mason, 155 Ark. 189, 191, 244 S.W. 6, 7.

5. Petitioner also complains about the trial

court’s refusal to permit him to introduce evidence

to show alleged circumstances of provocation lead-

ing up to his libel of the District Attorney, but this

argument 1s unavailing (Pet. 21-22). While the

truth and good motives might be shown as a defense

(Title 5, Section 354, Canal Zone Code, p. 16, infra),

the burden of proving truth was upon petitioner.*

Since he made no attempt to prove that the libelous

remarks were true (R. 153, 305), the circumstances

of his alleged provocation and good motives could

not be shown.’ It would have been improper to

® State v. Fosburgh, 32 S.D. 370, 379, 143 N.W. 279, 282;

People v. Taylor, 279 Ill. 481, 482, 117 N.E. 62; People v.

Strauch, 247 Ill. 220, 233, 93 N.E. 126, 132.

7 People v. Talbot, 196 Mich. 520, 527, 162 N.W. 1017,

1019; State v. Herman, 219 Wisc. 267, 277-278, 262 N.W. 718,

724.

Be.

permit petitioner to introduce evidence of alleged

libels against him by the District Attorney.’

12

6. Petitioner makes numerous objections to what

he calls unfair conduct of the prosecutor in assail-

ing petitioner, his counsel, and associates at the

pre-sentence hearing held before the trial judge

(Pet. 22-26), but none of them has merit.

Petitioner’s charges of anti-Semitic and anti-

Negro undertones are imaginary and not justified.

The record does not disclose that the witness

Brodsky’s name was repeated (see Pet. 22) any

oftener than necessary to designate him or oftener

than the name of any other witness would heve been

mentioned. The criticism about anti-Negro preju-

dice because the Negro lady, Miss Harewood, testi-

fied she wore false teeth (Pet. 25) is insincere,

because her testimony regarding this was given only

to show that she wanted to take notes because she

could not talk very well without her teeth (R.

83, 84).

Petitioner asserts that there is not the slightest

evidence that his accusatory statements against Mr.

McGrath were false, so that it was improper for

the prosecutor to refer to them as such (Pet. 24).

However, as we have heretofore pointed out,

supra, p. 11, the burden of proving the truth of

the article was upon petitioner, but he made no

attempt todoso. Since the jury had already found

® People v. Strauch, 247 Ill. 220, 229, 93 N.E. 126, 130.

_—

13

petitioner guilty, it was proper to refer to the

article as false.

Petitioner’s complaints as to the prosecutor’s

remarks about his counsel (Pet. 25-26) and most of

the other remarks complained of were made in the

closing argument of the prosecutor at the pre-sen-

tence hearing (R. 279-299). There was no objec-

tion to these remarks at the time. Berger v. United

States, 295 U. S. 78; Viereck v. United States, 318

U. S. 236; and Glasser v. United States, 315 U.S.

60, cited by petitioner (Pet. 26), all involved argu-

ments of counsel before juries, whereas here the

pre-sentence hearing was before the court without

a jury.” There was little danger that the district

judge would be prejudiced by such remarks in de-

ciding upon the sentence to be imposed.

®In Raymond v. United States, 25 App. D. C. 555, certiorari

denied, 200 U. S. 619 (see Pet. 26), the trial court after the

discharge of the jury heard certain evidence on the merits

which should have been heard before the jury and not by the

court alone, so that it is distinguishable from the instant case.

14

CONCLUSION

No conflict of decisions is involved and the peti-

tion for a writ of certiorari presents no question

meriting further review by this Court. It should

therefore be denied.

Respectfully submitted,

/ Puiuip B. PERLMAN,

Solicitor General.

J ALEXANDER M. CAMPBELL,

Assistant Attorney General.

Rosert S. Erpau 1,

yo RosBert G. Maysack, -

Attorneys.

OcrToBER 1949.

15

APPENDIX

Canal Zone Code, approved June 19, 1934, 48

Stat. 1122, provides as follows:

Title 1,Sectionl. * * *

a. That no person shall be deprived of life,

liberty or property without due process of law;

* * * * *

ce. That in all criminal prosecutions the ac-

cused shall enjoy the right:

~ * * * *

(2) To be informed of the nature and cause

of the accusation;

(3) To be confronted with the witnesses

against him;

* * * > *

Title 5, Section 351. Libel defined.—A libel

is a malicious defamation, expressed either by

writing, printing or by signs or pictures, or the

like, tending to blacken the memory of one who

is dead, or to impeach the honesty, integrity,

virtue or reputation, or to publish the natural

or alleged defects of one who is alive, and

thereby to expose him to public hatred, con-

tempt or ridicule.

Section 352. Punishment of libel—Every

person who willfully and with a malicious in-

tent to injure another publishes or procures to

be published any libel is punishable by a fine

Ce ee

16

of not more than $5,000, or imprisonment in

the penitentiary for not more than one year.

* * _ + *

Section 354. Truth and good motives as a

defense.—In all criminal prosecutions for libel

the truth may be given in evidence to the jury,

and if it appears to the jury that the matter

charged as libelous is true and was published

with gocd motives and for justifiable ends the

defendant shall be acquitted.

Section 355. Publication defined.—To sus-

tain a charge of publishing a libel, it is not,

needful that the words or things complained of

should have been read or seen by another. It

is enough that the accused knowingly parted

with the immediate custody of the libel under

circumstances which exposed it to be read or

seen by any other person than himself.

Sec. 356. Liability of editors and publishers.

—Each author, editor or proprietor of any

book, newspaper or serial publication, is

chargeable with the publication of any words

contained in any part of such book or number

of the newspaper or serial.

Section 357. Liability of author of libel._—

The author of a libel in all cases is equally

guilty and is subject to the same punishment

as the publisher, owner or proprietor of the

newspaper or other printed publication in

which the libelous article appears. The pun-

ishment prescribed in section 352 of this title

is applicable to this section.

17

Title 6, Section 181. Requisites of informa-

tion in general.—The information must con-

tain:

a. The title of the action;

b. The name of the court to which it is pre-

sented ;

c. The names of the parties;

d. A statement in ordinary and concise lan-

guage of the acts constituting the offense, in

such manner as to enable a person of common

understanding to know what is intended; and

e. A statement that it is based upon due in-

vestigation of the facts relating to the crime

charged therein, and upon the sworn testimony

of one or more witnesses.

* * * * al

Section 183. Requirement of directness and

certainty in certain regards.—The informa-

tion must be direct and certain as regards:

a. The party charged ;

b. The offense charged; and

e. The particular circumstances of the of-

fense charged, when they are necessary to con-

stitute a complete offense.

Section 184. Use of words employed to define

offense.—Words used in a law to define a

public offense need not be strictly pursued in

ap

18

the information, but other words conveying the

same meaning may be used.

* * * a *

Section 187. Sufficiency of information in

general.—The information is sufficient if it can

be understood therefrom, that:

a. It is entitled in a court having authority

to receive it, though the name of the court be

not stated;

b. It is signed and filed by the district attor-

ney of the Canal Zone;

ce. The defendant is named, or if his name

cannot be discovered, that he is described by a

fictitious name, with a statement that his true

name is to the district attorney unknown;

d. The offense was committed at some place

within the jurisdiction of the court, except

where the act, though done without the local

jurisdiction of the court, is triable therein;

e. The offense was committed at some time

prior to the time of filing the information;

f. The act or omission charged as the offense

is clearly and distinctly set forth in ordinary

and concise language, without repetition, and

in such a manner as to enable a person of com-

mon understanding to know what is intended;

and

g. The act or omission charged as the offense,

is stated with such a degree of certainty as to

lt

= —

19

enable the court to pronounce judgment upon

a conviction, according to the right of the case.

* * * * *

Section 201. Information for libel_—An in-

formation for libel need not set forth any ex-

trinsic facts for the purpose of showing the

application to the party libeled of the defama-

tory matter on which the information is

founded; but it is sufficient to state generally

that the same was published concerning him,

but the fact that it was so published must be

established at the trial.

Title 7, Section 34. Selection, swmmoning

and serving of jurors.—The district judge

shall provide for the selection, summoning and

serving of jurors from among the citizens of

the United States subject to jury duty to serve

in the division of the district in which such

jurors reside. Any citizen of the United States

who is employed by the Panama Canal or the

Panama Railroad Company within the Canal

Zone, and who resides in a residence owned by

the Panama Canal or Panama Railroad Com-

pany in territory contiguous to the Canal Zone

shall for the purpose of this section be deemed

to reside in the division nearest his place of

residence.

Part V, Section 1 of Rules of the United States

District Court for the Canal Zone, effective August

1, 1945, provides:

— —_—_—_

20

QUALIFICATIONS OF J URORS

Persons serving as jurors in this court must

possess the following qualifications:

(a) American citizenship ;

(b) Male sex;

(c) Age of twenty-one years or over;

(d) Ability to read, write, and understand

the English language;

(e) Intelligence, sobriety, discretion, and

impartiality ; and

(f) Residence in the Canal Zone, or, in the

case of employees of The Panama Canal or

Panama Railroad Company, residence either

in the Canal Zone or in a residence owned, con-

trolled, or provided by the Canal or Railroad

in territory contiguous to the Canal Zone.

Employees living in residences owned, con-

trolled, or provided by the Canal or Railroad

in territory contiguous to the Canal Zone are

deemed for purposes of jury duty to reside in

the judicial division nearest their places of

residence.

b* U. S. GOVERNMENT PRINTING OFFICE: 1949 sses7s 104