Conford, Kilkenny and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Defendants Richard P. Browne and Dorothy Stults, by leave of court granted, appeal from interlocutory orders of the Passaic County Court denying their motions to dismiss indictments charging them with the crime of libel and conspiracy to commit libel.
The indictments were the outgrowth of a mayoralty campaign which preceded the November 1961 election in Wayne Township, New Jersey. Browne was the incumbent officeholder running for reelection, and Stults was an active leader among his supporters. George L. Sullivan, a member of the governing body of the municipality, was an opposition candidate for the office of mayor. Ten days prior to the election Sullivan published and circulated an open letter under his signature addressed to the residents of the township which reads:
"As you know I have publicly demanded that Richard P. Browne resign as Mayor. I did so because I have documentary evidence indicating that he planned to use his public office for private profit and did so. I have here reproduced one of the documents upon which I based this demand.
Mr. Browne has threatened to sue me if this document is distributed in our town. But as one of your elected representatives on the governing body these threats cannot and will not deter me from my public duty to you.
You now have this document. You also have the affidavits which verify it. The public records in the municipal building demonstrate how the plan set forth in Mr. Browne's memorandum was implemented by him as an elected official of our town.
No man can faithfully serve two masters. The decision is yours."
The documentary evidence that accompanied his published letter included an introductory statement in large print: "Here is documented proof of the charges against Richard P. Browne," which statement was followed by a notation of the items constituting the document, namely:
"EXHIBIT I -- Memorandum written by Browne to his associates indicating that politics 'pays off' in private profit.
EXHIBIT II -- Sworn affidavit of the secretary who typed Exhibit I from Browne's handwritten memorandum handed to her by Browne.
EXHIBIT III -- Sworn affidavit of one of Browne's associates that Browne personally handed him Exhibit I representing that it was a document he had written."
It is unnecessary for the purpose of this opinion to detail the contents of those lengthy exhibits. Suffice it to mention that the purported "memorandum" of Browne to his "associates" was an interoffice communication to his former employer, Fred W. Gardner, a licensed civil engineer and land surveyor of this State, for whom Browne had worked for approximately ten years. The memorandum was captioned "Re: Review of Pending Work for 1961" and described, inter alia, certain local land development plans anticipatorily profitable as engineering projects to the firm with which he was associated. The affiants were Gardner and his secretary, Rose Marie Scanlon, and the jurats were signed by Ernest T. Scheidemann, a notary public. The material thus publicized, all of which is set forth as an exhibit to each of the indictments before us, is plainly defamatory as it unequivocally accused Browne of a breach of public trust during his term of office as elected mayor. That release was obviously calculated to taint Browne's reputation and terminate his public career.
The mayor's first response to the accusatory charges made by his political adversary took the form of a letter denying the authorship of the alleged memorandum to his employer Gardner and declaring the published document to be false. Then followed a campaign "flyer," the sole basis for the series of indictments here involved. Copies were released the day preceding the election and were distributed to the electorate by Browne and Stults.
Our examination of the flyer and Gardner's affidavit shows that his signature on the affidavit differs radically from that shown on the flyer as his "authentic signature."
After the election the Passaic County grand jury investigated the campaign controversy between Sullivan and Browne,
and it returned indictments against Browne and five of his political confederates. There were three indictments, as hereafter mentioned. The following language exemplifies the allegations contained therein:
"* * * they [defendants] unlawfully conspired together to unlawfully and maliciously contriving and intending to defame George L. Sullivan, Fred W. Gardner, Rose Marie Scanlon and Ernest T. Scheidemann and each of them, and cause them and each of them to be held up to disgrace, injure and aggrieve them and each of them, unlawfully and maliciously did compose, issue and publish a so-called 'flyer' hereto annexed marked Schedule 'B' and made part hereof; which contained certain false, scandalous, malicious and defamatory libel concerning George L. Sullivan, Fred W. Gardner, Rose Marie Scanlon and Ernest T. Scheidemann and each of them, uttering among other things the false, malicious, defamatory and libelous matters following, to wit:
'Why did Sullivan wait until only a few days before election to distribute his so-called "Documented Proof." 'Sullivan didn't want his so-called "Documented Proof" put to a test -- that's why he waited until a few days before election to distribute it.' 'Who signed the Gardner affidavit appearing in Sullivan's "Documented Proof"? Again we ask who signed Sullivan's so-called affidavit and why?', * * *."
The indictments further indicate that the gravamen of the alleged offense is predicated upon certain innuendoes present in the flyer, namely: Sullivan, Gardner, Scanlon and Scheidemann had conspired to and did issue a false document embracing a forged affidavit of Gardner and containing a false jurat notarized by Scheidemann, as well as a false affidavit sworn to by Scanlon.
On application of the prosecutor the indictments were dismissed as to all parties except Browne and Stults. Upon motions for dismissal by those two remaining indictees, the trial judge concluded:
"* * * It is obvious that these statements in the flyer go beyond the defensive declarations. They are a counter-attack on Sullivan, in an attempt, not only to discredit the memorandum and attached affidavits, but to impeach the honesty of the others, Gardner, Scanlon and Scheidemann."
The court dismissed the first three counts but retained the fourth count of the indictment against Browne for criminal libel as to Sullivan, Gardner, Scanlon and Scheidemann; retained the three counts of the indictment against Browne and Stults for the same offense against the same individuals, and retained the indictment against Browne and Stults for conspiracy to commit criminal libel against the four persons afore-mentioned.
In this appeal from that determination defendants have filed separate briefs in which they advance concordant arguments challenging the validity of the indictments because (1) they fail to state facts sufficient to constitute a crime, do not adequately inform the accused of the nature and the cause of the accusations, the allegations therein do not disclose subject matter libelous per se, and they fail to conform to the constitutional mandate (N.J. Const. 1947, Art. X, par. 3) that all indictments shall conclude: "against the peace of this State, the government and dignity of the same," as that required language is recited only on the yellow backing stapled to the indictments; (2) the innuendoes asserted to imbue Browne's publication with a defamatory meaning do not have that effect; (3) the so-called "flyer" was privileged as a matter of law, and (4) the charge of conspiracy is not sustainable.
The critical issue is the legal sufficiency of the indictments. Defendants maintain, relying upon authorities seemingly supportive of their contention, that libel is not criminally punishable unless it may tend to provoke a breach of the peace, and that such an allegation is a necessary constituent element of a valid indictment. In our approach to the pending problem we cannot be oblivious to the evolutionary changes in the history of criminal libel actions and shall, therefore, consider in limine (a) some significant highlights in the early development of criminal libel, (b) shifting emphasis in the law, (c) prevalent atrophy of prosecutions for such ...