delivered the opinion of the Court:

It is unnecessary to consider in detail the assignments of error made by the appellant, or the exceptions upon which they are based. Most of them are frivolous, or seek to raise questions of law which are too well settled to need further elucidation. Only two or three need to be specially noticed.

1. In the first place, it is contended that the alleged libel is no libel at all; and in any event, even if it is of a libelous character in itself, it is a privileged communication, being addressed to the chief executive officers of the District, in reference to alleged misconduct of some of their subordinate officials. But this pretense of privilege is absurd. The scurrilous character of the communication is such as should have precluded it from being addressed to anyone. Scurrility and privilege cannot go together. Moreover, the appellant was careful not to confine it to the commissioners to whom it was addressed, but was sedulous, according to his own admission, to send copies to all the persons attacked in it. While perhaps in one sense this course might be regarded as more honorable than a private and carefully guarded attack upon the integrity of the officials named, it certainly removes the letter from the class of privileged communications. And when, in addition to this, it appears that there was not the slightest attempt to show any foundation whatever, by testimony at the trial, for the assault, it would be a disgrace to our jurisprudence to regard such a communication as privileged. And as for the libelous character of the letter itself, we think that is too plain for argument. As we have said, it distinctly charges the inspector of buildings and the chief of police with malfeasance in office, — a charge for which there is *560not even a pretense to adduce proof, or to. show that the appellant had any honest belief in it. In one of the latest cases on the subject of libel, that of Triggs v. Sun Printing & Pub. Asso. 179 N. Y. 144, 153, 66 L. R. A. 612, 103 Am. St. Rep. 841, 71 N. E. 739, following numerous cited cases, libel is defined in the following language: “A written or printed statement or article published of or concerning another, which is false and tends to injure his reputation, and thereby expose him to public hatred, contempt, scorn, obloquy, or shame, is libelous per se.” The appellant’s publication undoubtedly falls within this category, unless, indeed, its remarkably gross scurrility could be regarded as sufficient to discredit it with all intelligent men. But this is an excuse which cannot be admitted in law.

Freedom of the press and freedom of speech, as guaranteed by the Constitution, are not in issue in this case. No man, however limited his intelligence, could read this lucubration, without feeling that the appellant had exceeded, not only the limits of decency and propriety, but the limits of honest criticism likewise.

2. Nor, in the second place, is there any question here of a violation of the 8th Amendment of the Constitution, which prohibits the infliction of cruel or unusual punishments. The contention of the appellant is that, by the sentence of the court consigning him to five years of imprisonment, with hard labor, a cruel and unusual punishment is sought to be inflicted. But the statute (Code, sec. 815, 31 Stat. at L. 1323, chap. 854) provides that “whoever publishes a libel shall be punished by a fine not exceeding $1,000, or imprisonment for a term not exceeding five years, or both;” and we are not prepared to say that this statute is in violation of the fundamental law. Imprisonment in the penitentiary for five years is not in itself a cruel and unusual punishment in the sense of the constitutional prohibition; and the publication of a libel is an offense which might be, under some circumstances, especially atrocious and deserving of severe punishment. To be given the full extent of the law, as the expression is, in any particular case, may be an act of severity, as indeed it would seem to have been in the present case; but *561this is not cruel and unusual punishment such as is prohibited by the fundamental law. Not so much the extent as the nature of the punishment it is that makes it cruel and unusual; although in many cases it may be difficult to distinguish severity from cruelty.

3. But there is a feature of this case, which, although not noticed by either side in argument, we cannot ignore. It is the proceeding which was had after the verdict and when the defendant ivas called for sentence. At that time the prosecution, for what reason is not entirely apparent, reopened the case, without the presence of the jury, — which, of course, had been discharged,— and adduced testimony in continuation of that which had been adduced at the trial, and this, to contradict the defendant’s testimony and to break down his defense. This we must regard as a grave irregularity. It was a trial of the defendant before the court, and not before the jury, to which he was entitled; and he justly objected to it, and reserved his exception to the novel proceeding.

Of course, it is not an unknown proceeding, although an unusual one, for the court, before pronouncing sentence, to receive suggestions, and even to make inquiry, that would result in the mitigation or the aggravation of the punishment to be imposed, —more frequently, however, in mitigation than in aggravation; and the express purpose of the inquiry then usually addressed to the defendant,- — -whether he has anything to say why the sentence of the law should not be imposed upon him, — has this very end in view. At that time the defendant may plead a pardon, or insanity, or any other matter that would make it improper to give effect in judgment to the verdict of guilty that has been rendered by the jury; or he may protest his innocence, or his previous good character, or his peculiar circumstances, or any other matter that would tend to make his punishment lighter than it might otherwise be. But we have never understood that a cause might be retried at this stage of the proceedings, either in whole or in part, before the court, instead of the jury.

It is very true that the defendant had already been found guilty, and the additional proof now introduced could add no *562greater efficacy to the verdict. But it could influence the court against the defendant, and it undoubtedly had that effect in the severity of the sentence that was rendered; and it being a part of the case against him, the defendant had the right to have it passed upon by the jury. We believe that it is not unusual in the English practice, and not unknown in our American practice, that the court after verdict may examine into the prisoner’s record, and even take testimony in regard to his previous character as a law-abiding citizen, or the contrary, although we do not hold that such practice is proper in this jurisdiction; but it does not seem to be just to an accused person that issues in the very case in which he has been found guilty should he taken up again before the court, and retried without the presence of the jury. We think that it was an irregularity to do this in the present case, for which the judgment and sentence of the court should he vacated.

The cause will be remanded to the Supreme Court of the District, with directions to vacate its judgment and all the proceedings had after the verdict of the jury, and to proceed de novo upon such verdict. And it is so ordered. Reversed.

A motion for a rehearing by the appellant was denied June 18, 1905, Mr. Justice Morris delivering the opinion of the Court:

A motion for rehearing has been made in this case; and while said motion will not be allowed, we deem it proper so far to modify the opinion and judgment heretofore rendered by this court as to provide that only the judgment and sentence of the court below, and the proceedings had in the cause after verdict, shall be vacated, and that the cause shall be remanded for further proceedings therein upon the verdict in accordance with law and the opinion of this court. And it is so ordered.