I concur in the opinion of the majority of the court, that the article complained of does not fall within the provisions of section 317 of the Penal Code, under which the defendant was indicted, which section makes it a misdemeanor to sell, give away or show any "obscene, lewd, lascivious, filthy, indecent or disgusting book, paper or picture," etc. That the article is a scurrilous and vile attack on a large and respected body of Christian clergymen is unquestionable. That it is "indecent" from every consideration of propriety is entirely clear, but that is not the indecency condemned by this section of the Code. The preceding section punishes indecent exposure of person, the next section the sale of articles for indecent or immoral use. The chapter in which all the sections are found is entitled "Indecent exposures, obscene exhibitions, books and prints, and bawdy and other disorderly houses." From the context of the statute it is apparent that it is directed against lewd, lascivious and salacious or obscene publications, the tendency of which is to excite lustful and lecherous desire. That such is not the effect of the publication is clear from the fact that my brother who writes the dissenting opinion publishes it in full, and I am entirely certain that did he believe the tendency of the article was lecherous and salacious, he would find no justification for its publication in the fact that the majority of the court, from whose decision he feels constrained to dissent, entertain a contrary view. In the English case cited by my brother no part of the improper publication is reproduced, but the report is confined to a statement of its general character. I regret that the publication should appear in the reports of *Page 481 this court, not because I deem it lewd, but because I feel that the reports of this court should not be made the means of perpetuating a scurrilous and wanton slander on any class of the community. This is an example of the extent to which sectarian religious animosities may lead a weak and disordered mind, for it is mere charity to consider such to be the character of the writer of the production. Since, however, the article is to appear, I may challenge its comparison with many that have been published attacking the Mormon church. Surely, publications as to that church have gone far beyond the article now before us. It is no answer to say that the Mormons, while they practiced polygamy, were justly subject to such strictures. The truth or falsity of the writing has no bearing on the guilt or innocence of the defendant under this section of the Code. If the charges contained in this article had been made, not against a class but against a single individual, and that individual a layman, not a clergyman, it would, doubtless, if false, have been a gross libel. But it would not be contended that if true it was indecent and should subject the party writing it to the penalties prescribed by the Code.
It does not necessarily follow that the defendant is amenable to no punishment. The charges in the article being against a whole class, no single individual could maintain an action for libel against its author (Sumner v. Buel, 12 Johns. 475), but not so, however, as regards a criminal prosecution for libel. The foundation of the theory on which libel is made a crime is that by provoking passions of persons libeled, it excites them to violence and a breach of the peace. Therefore, a criminal prosecution can be sustained where no civil action would lie, as for instance, in this very case, where the libel is against a class (Sumner v. Buel, supra; Palmer v. City of Concord,48 N.H. 211; State v. Brady, 44 Kan. 435), and also in the case of a libel against a deceased person. It may be urged that the question whether the defendant should be prosecuted for an indecent publication or for a libel is a technical one. This is very far from being the fact. So careful have the *Page 482 people of the state been to secure freedom of speech, subject only to punishment when a jury has found that that freedom has been abused, that by he various Constitutions of this state, ever since that of 1822, it has been expressly enacted that in a prosecution for libel the truth may be given in evidence and the jury shall have the right to determine the law as well as the fact. This applies to no other criminal prosecution.