Edward G. Petrillo and Robert H. Chase, Erie, for appellant.
Willard Hetzel, Matthew W. Bullock, Jr., Julian E. Goldberg, Philadelphia, for American Civil Liberties Union, amicus curiae.
Damiam McLaughlin, Dist. Atty., Erie, for appellee.
Before Hirt, Acting P.j., and Ross, Gunther, Wright, Woodside and Ervin, Jj.
[ 176 Pa. Super. Page 28]
This is a prosecution for criminal libel under the Act of June 24, 1939, P.L. 872, par. 412, 18 P.S. § 4412. Before trial, the defendant filed a motion to quash the indictment which motion was refused. The jury returned a verdict of guilty, the defendant's motion in arrest of judgment was refused, and after sentence was imposed he took this appeal.
The defendant contends that the court below erred in refusing to sustain his motion to quash the indictment and his subsequent motion in arrest of judgment. Both motions are based upon an alleged infirmity in the indictment in that 'it does not set forth extrinsic facts to show the person to whom the publication referred when the publication itself did not name the
[ 176 Pa. Super. Page 29]
person at whom it was aimed.' Consequently, the only question before us is the sufficiency of the indictment.
The indictment reads in part as follows: '* * * one John Nicholas Donaducy * * * unlawfully and maliciously contriving and intending to injure and vilify the good name and reputation of one LaVerne Chellis * * * and to expose the said LaVerne Chellis to public hatred, contempt and ridicule, did then and there unlawfully, wilfully and maliciously compose, write, and did wilfully, maliciously and unlawfully print and publish in a certain newspaper of general circulation, to wit: 'Jack Ducy's Town Crier', a certain false, scandalous, malicious and defamatory libel of and concerning her, the said LaVerne Chellis * * *.' Thereafter in the indictment was recited the entire article published, the gist of the article being that an unnamed woman, over a period of time, had been having an illicit affair with a married man. The woman was variously described as a 'buxom brunette of Latin vintage', a 'raven-haired, owl-eyed social worker' and a 'home-wrecking social worker'. On these and other occasions when the person described was allegedly the prosecutrix, LaVerne Chellis, there was inserted in the text of the article as quoted in the indictment the parenthetical phrase '(meaning LaVerne Chellis)'.
The indictment concludes: 'And by means of this publication and circulation of said false, scandalous, malicious and defamatory libel, he, the said John Nicholas Donaducy (Jack Ducy) did thereby, then and there unlawfully, wilfully and maliciously expose her, the said LaVerne Chellis, to public hatred, contempt and ridicule, to the great damage, disgrace, scandal and infamy of her, the ...