People v. Sherman — 3 N.Y. St. Rep. 696

Majority

p. 696

People of the State of New York, Resp’t, v. Charles G. Sherman et al., Appl’ts.^[1]

(Court of Appeals,

Filed November 28, 1886.)

Headnote

Libel—Criminal prosecution—Evidence—Admissibility op.

Where, on the trial of a criminal prosecution against a newspaper, the evidence previously introduced tended to establish that all the defendants, except one, had knowledge of the sending of L. (the writer of the article) and H. to the comptroller’s office; that they had made an examination there, and had found the article in question false; that a retraction was prepared and the publication thereof refused, and the libelous article republished. Held, that the, testimony of a clerk in the comptroller’s office that L. and H. visited the said office at the time stated and looked over the books, was admissible, both as relating to the main issue involved and as constituting a part of the res gestae, and as corroborating the evidence of accomplices.

Appeal from judgment of supreme court, general term, third department, affirming a judgment and conviction of defendants in a criminal prosecution for libel.

N. C. Moak, for appl’t; Charles E. Patterson, for resp’ts.

The defendants were convicted of participation in the publication of a libel against one Sheary. The alleged libelous article was published in a newspaper printed by a corporation, with which all the defendants were connected in some capacity. Upon the trial, proof was given to establish that the libelous article in question was written by one Lowery; that it was published in the first edition of the newspaper in question; that upon its perusal immediately after the printing of the newspaper, a question was made as to the truth of the charges contained in the article published, which related to the disbursement of money for street cleaning purposes in connection with the comptroller’s

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office in the city of Troy, and thereupon said Lowery and one Hennessey were sent to the comptroller’s office to ascertain if the charges in the printed article were true. They reported that the same were false, and an article was written by Hennessey, in season for the second edition, containing a retraction, which defendants declined to publish, and issued the second edition, which contained said libelous article as previously published.

The testimony of Hennessey and Lowery, in regard to their going to the comptroller’s office, was contradicted by the defendants, and each of them denied any knowledge of the libelous article until after it had been published in the second edition of the newspaper. The prosecution then called as a witness one De Freest, a clerk in the comptroller’s office, who testified that, between three and four o’clock on the day in question, Hennessey and Lowery come to the office of the comptroller and looked over the books. The evidence was confined to this single fact. The defendants’ counsel objected to the evidence upon the ground, among others, that it was not competent for the people to corroborate the alleged truthfulness of the witnesses, who had previously testified as to the same fact, by proving that a fact which they stated to have occurred in the absence of the defendants, or either of them, was true. The objection was overruled, and the defendants separately excepted to the ruling of the judge.

We think there was no error in the admission of the evidence objected to.. Hennessey had sworn that the defendants, with the exception of Sherman, held a meeting after he and Lowery had been to the comptroller’s office, and notified them that the printed article was untrue. The testimony objected to and introduced corroborated Hennessey’s evidence. The evidence previously introduced tended to establish that all the defendants, with the exception of Sherman, had knowledge of the sending of Lowery and Hennessey to the comptroller’s office; that they had made an examination there, and had found the article in question to be false; that a retraction was prepared, and the publication thereof refused, and the libelous article republished. The testimony, therefore, of De Freest strongly sustained the other evidence introduced. It related to the principal question involved, whether the defendants had knowledge of, or participated in, the alleged libelous publication. It was a corroboration in regard to the main issue involved upon the trial. Although the facts testified to by De Freest had been previously proven, yet, as it was material and bore upon the whole case, it was competent to establish by another witness what had already been proved. It added

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to the weight of the testimony introduced as to a very important fact, and was entirely competent additional proof bearing upon the issue presented. Even if it be regarded as corroborating another witness, as it related to the main question of the defendant’s guilt, it was entirely relevant. As Lowery was an accomplice, and on his evidence alone no conviction could be had, the corroboration was proper and the evidence material to prove that defendants had knowledge and notice as to the falsity of the charges made.

The authorities cited by the learned counsel for the appellants, to sustain his position that the evidence was inadmissible, are not, we think, in point. The visit to the comptroller’s office was a very material fact which bore directly upon the innocence or guilt of the defendants. It relates to the motive of the-defendants, and the question of malice, which was involved upon the trial. If the defendants knew that the charges made were false and untrue, before the publication of the" second edition of the newspaper, and had an opportunity to correct the same, proof of such knowledge was material and important. The time of the visit was important, and the testimony was limited mainly to that, and might well have been proved by any number of witnesses.

In the case of People v. Haynes ( 55 Barb., 450 ), which is relied on, the evidence held to be incompetent related to a collateral matter, which had no direct bearing upon the charges made, while the testimony here was direct, and connected with the gravamen of the offense alleged.

The other authorities cited are also inapplicable. If the testimony here can be regarded as a corroboration of an accomplice, it related to a fact which tended to fix the guilt upon the persons charged with the offense; but, as we have seen, it was otherwise admissible as relating to the main issue involved, and as constituting a part of the res gestee.

We have examined the other questions raised by the appellants’ counsel, and .find no ground for holding that any error was committed by the court in its rulings^ in regard to them. They are sufficiently considered, so far as material, in the opinion of the general term.

The judgment and conviction was right and should be .affirmed.

All concur.