People v. Sherlock

The appellant was indicted for having published in a newspaper called the Unionist a false and malicious libel on Charles M. Clark, then in the employ of one of the large daily papers in the city of New York. At the time of the offense there was a “ labor war ” between the organized or “ union ” printers , and the newspaper on which Clark worked. The material part of the alleged libel in substance charged Clark with having, when foreman of the Providence Journal, made fálse entries in the payroll of the paper, and appropriated the money represented by such entries. .The Unionist was published as the representative or organ of the labor unions,

The first ground on which it is -sought to reverse the judgment below is that the trial court, in its charge, invaded the province of the jury which, under section 8, art. 1, of the constitution, is, in criminal prosecutions or indictments for libel, authorized to determine the law and the fact. We are of opinion that the question is not properly before us, because no exception was taken on the trial to the charge of the court. By section 527 of the Code of Criminal Procedure the appellate division is authorized to grant a new trial in a criminal case when satisfied that the verdict against the prisoner is against the weight of evidence, against the law, or that justice requires it, whether exceptions have been taken in the court below or not. But by section 528, which regulates appeals to this court, the broad power given to the appellate division of the supreme court is bestowed upon us only where the judgment is of death. In other cases we can take notice only of legal errors appearing in the record or raised by exception on the trial. People v. Driscoll, 107 N. Y. 414 , 14 N. E. 305 ; Same v. Lyons, 110 N. Y. 618 , 17 N. E. 391 ; Same v. Leonardi, 143 N. Y. 360 , 38 N. E. 372 . The fact that the alleged error involves a constitutional question does not increase our power of review, which is limited by the constitution itself, and legislation enacted in pursuance of it. The case is not analogous to that of Cancemi v. People, 18 N. Y. 128 . There the record showed on its face that the verdict was rendered by only it jurors. It was held that such a number did not constitute a legal jury, and therefore there was no jurisdiction to render the verdict. In Messner v. People, 45 N. Y. 1 , the record failed to show that the prisoner was asked what he had to say why judgment should not be pronounced against him. It was held that the

But, if we may look at the charge of the trial judge, we find no error therein. While the court stated its opinion of the law, the jury were several times distinctly instructed that under the constitution it was the judge alike of the law and the fact. It is not necessary to review the struggle that long prevailed between courts and juries as to their respective rights in prosecutions for libel. The history of the contest is common learning of the profession. The controversy was settled in this, state by the enactment of chapter 90 of the Laws of 1805, which provided that the jury should have the right to determine the law and the fact “ under the direction of the court, in like manner as in other criminal cases,” and that the truth of the li-bel, when published with good motives and for justifiable-ends, should be a justification of the charge. These provisions, of the statute have been incorporated into the constitutions of 1821 and 1846, except that the right of the jury to determine-both the -law and the fact has been made unqualified. At the time of the enactment of the statute referred to and of the-adoption of the constitution of 1821, the doctrine that in criminal cases the jury had the right as well as the power to determine both the law and the facts, if not universally accepted, prevailed to a very great extent. That seems to have been the view of Chancellor Kent. See People v. Croswell, 3 Johns. Cas. 337 . The law was finally settled otherwise in this state in Duffy v. People, 26 N. Y. 588 , where it was held that in criminal cases (except prosecutions for libel), as well as in civil cases, the jury is bound to take the law from the court. The question was not authoritatively determined in the federal tribunals until the recent decision of the supreme court of the

There is but one exception which it is necessary for us to notice. The appellant was permitted the greatest latitude in his attempt to substantiate the charge of dishonesty made against the prosecutor. No proof, however, was given which sustained the charge. The defendant became a witness on his ■ own behalf, and testified fully to his motive and intent in publishing the libel. He was then asked if, at the time of its publication, he believed the truth of the article. The question was objected to, and excluded over the defendant’s exception. It is claimed that this ruling was error, and that the defendant was entitled to the benefit of the excluded evidence. In discussing this question it is to be premised that the function of the court in ruling on the admission of evidence is in no way affected or limited by the consideration that the jury is to determine the law and the fact when the cause is finally submitted to it.. The question of the competency of evidence offered by either party must be decided by the court in the same manner

By section 244 of the Penal Code, “ the publication is excused when it is honestly made, in the belief of its truth and upon reasonable grounds for this belief, and consists of fair comments upon the conduct of a person in respect of public affairs, or upon a thing which the proprietor thereof offers or explains to the public.” This provision seems to be entirely new, and I cannot find its history prior to the enactment of the Penal Code in 1881. It was not in the Code as it was reported by the codifiers in 1850. It does not deal with the cases of privileged communications, for they are covered by section 253; and it was always a good defense to a prosecution for libel that the communication was privileged. But whether a false charge is excusable or not under the Penal Code depends not only on the belief of the defendant, and the grounds for such belief, but also on the subject-matter of the publication. It must consist “ of fair comments upon the conduct of a .person in respect of public affairs, or upon a thing which the proprietor thereof offer or explains to the public.” The pecuniary honesty of Clark as foreman of a newspaper office was in no sense a public affair. It is not necessary for us to now

Nor was the evidence admissible on the question of good faith in the publication of a privileged communication. Such a communication is privileged only when it is confined to those having an interest in the information (Sunderlin v. Bradstreet, 46 N. Y. 188 ); also, if made voluntarily, it must be made by one interested in or entitled to make it. The charge was not made to Clark’s employer, but in the defendant’s paper, which was for sale and circulation among the public generally. As already said, the public had no interest within the meaning of the section of the Code in the subject of Clark’s acts while a foreman of the Providence newspaper. In no view of the case and the evidence was the excluded testimony competent. The judgment appealed from should be affirmed.

Parker, Ch. J., and Gray, Bartlett, Martin, Vann, and Werner, JJ., concur.

Judgment of conviction affirmed.