889 Page – American State Trials 1918 Volume X Leo Frank Document

Here is the translated text as follows:

The purpose of requiring that the charge against a defendant be explicit is to ensure that the defendant can clearly comprehend it and be prepared to make a defense. It is not necessary for this purpose to recite the name of the libel. The charge against the defendant is very explicit, and he understands it well and is prepared to defend it. However, it is no criticism of his counsel that they argue this point in his favor.

You further argue, on the supposition that if a subsequent prosecution were to be instituted for the same offense, the verdict and judgment now to be rendered could not be pleaded in bar. It requires very little legal ability to demonstrate that the title need not be recited; it is equally easy to prove that the decision in this case may be pleaded in bar of any other prosecution for the same offense. The attorney for the United States must prove that the defendant did publish a false, scandalous, and malicious writing with the intent to defame the President. This can be done without reciting the title; and if he supports by evidence any entire charge—if he proves that the defendant did publish any false, scandalous, and malicious writing—it will be sufficient to support the indictment as to that charge. However, he must be acquitted of the other charges, and the charges of which he may be found guilty can be easily compared to charges in any subsequent indictment.

This is quite different from cases where there is an actual variance between the paper charged and the paper offered in evidence. I understand the difference to be that where the prosecutor undertakes to say that certain precise words have been published, he must establish them. But when he states words of the tenor and effect following, he will only be obliged to prove the substance. However, you insist that the whole original, including the title, must be set out.

This position, despite the boisterous way in which it is laid down, is incorrect. At common law, there must always be an exact recital of the alleged libelous matter unless the indictment itself excuses the pleader from doing so on the grounds of the destruction of the instrument or its possession by the defendant. See the authorities collected in Wharton’s Precedents of Indictments, 545. "Tenor and effect" requires a literal recital, as seen in Ford v. Bennett, 1 Ld. Ray, 415, and R.B. v. Bear, 2 Salk. 417. At the same time, Mr. Hay’s position that the title must be set out is not sustained by the authorities.

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