53 N.J.L. 23 | N.J. | 1890
The opinion of the court was delivered by
The plaintiff in error was indicted, tried and convicted in the Union County Quarter Sessions, for publishing the following newspaper article :
“an alleged editor cowi-iided by an indignant woman.
“ There was much excitement yesterday over the cowhiding of .one of the publishers of the Herald by a lady whose home is at Elizabeth and Jefferson avenues.
“ Her family, like many others in this city, have been outraged by a villainous statement in that contemptible sheet. The lady called at the office and demanded a retraction, which was obsequiously promised, but never performed by the publisher.
“Upon ascertaining that the.villification had not been contradicted, the lady, boiling with indignation, again visited the establishment, and inquired for Henry Cook, one of the publishers. Mr. Cook hastened to meet his visitor, but had he suspected what was in store for him, he would sooner have sprung from the old pulpit in his office into one of the graves which yawns beneath his window.
“‘Madame, I,’ stammered the so-called newspaper man.
“ ‘ Don’t interrupt me, sir, until I am through,’ said the lady. ‘ You have done my family a foul wrong, and I want to know why you did not keep your promise and make reparation. Why didn’t you do so ? ’
“ ‘ I—I—I forgot about it. You see this office is in very warm water. ■ We'have all we can do to raise money to keep this paper afloat, and besides, we have a libel suit on again at this term of court, and we can’t remember all that we promise. We shan’t notice your case any further, because we don’t want to,’ stammered the so-called editor.
•“ ‘ You don’t, eh ? Then I will compel you to.’
“And, suiting the action to the word, she withdrew from 'her dress a stout whip, and before the alleged editor could beat a retreat she struck him savagely across the head. Howling' with pain, the alleged newspaper man sprang over the counter ■and bounced away, but being overtaken by the lady, was again lashed until he cried for ‘ mercy.’
“‘I will take the first opportunity I can get to give you •another trouncing,’ consolingly remarked the woman, as she folded up her whip and took her departure, leaving the sobbing editor in the arms of his stalwart ‘ frog on a stump ’ partner, who vigorously used the office towel in wiping the blood from his friend’s face.
“ The affair is ‘ all the talle ’ among the fraternity, most of whom laugh at the editor for showing the white feather and allowing himself to be horsewhipped under his own vine and fig tree, which is so heavily mortgaged that no matter how much the court this term may mulct the concern in for defamation of character, not a cent can be recovered. One of our ■mounted staff ascertained this morning that Mr. Cook will be able to get about by to-morrow.” .
Of these the most important relates to the. action of the-trial court with regard to the respective functions of the court and the jury under our constitution, which declares {Art. I., § 5): “ Every person may freely speak, write and publish his-sentiments on all subjects, being responsible for the abuse of’ that right. No law shall be passed to restrain or abridge the-liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and-for justifiable ends, the party shall be acquitted ; and the jury shall have the right to determine the law and the fact.”
The meaning of this clause, so far as it bears upon the present case, will, I think, be best perceived by recurring to its origin, which is easily discoverable.
The paragraph is an almost verbal copy of article VII., section 9, of the New York constitution of 1821, which was drawn from a statute of that state enacted in 1805. That statute was brought to pass because of an equal division among the justices of the Supreme Court of New York in the case of The People v. Croswell, reported in appendix to 3 Johns. Cas. 337.
Croswell had been tried in 1803 at the Columbia Circuit before Chief Justice Lewis for a libel on President Jefferson,, and had been found guilty under a charge of the Chief Justice,, that it was no part of the province of the jury to inquire or decide on the intent of the defendant, or whether the publication in question was true, or false, or malicious; that the only questions for their consideration and decision were—first,, whether the defendant was the publisher of the piece charged in the indictment; and, second, as to the truth of the innuendoes ; that the intent of the publisher and whether the publication in question was libelous or not, was, upon the return of the postea, to be decided exclusively by the court. On a motion made at bar in 1804 for a new trial, Alexander Hamilton, on behalf of the defendant, contended, that the liberty
Of the four judges who heard the argument, Kent and Thompson, JJ., favored a new trial; Lewis, C. J., and Livingston, J., opposed it.
In the opinion prepared by Judge Kent, the positions of Mr. Hamilton were supported and illustrated by the copious learning of that distinguished jurist. He cited the case of The Seven Bishops, 4 St. Tr. 394, as an auspicious and memorable instance of the exercise of the right (not merely the power) of the jury -to determine both the law and the fact, and declared, that that right had received the sanction of some of the highest authorities in the law; and he announced his own conclusions to be, that, upon every indictment or information for a libel, where the defendant puts himself upon the country by a plea of not guilty, the jury have a right to judge, not only of
The language of Judge Kent on the right of the jury to decide upon “ the whole matter put in issue,” and the duty of the court, “according to their discretion, to give their opinion and direction to the jury on the matter in issue,” was quoted by him from the English statute, known as “ Fox Libel bill,” 32 Geo. III., ch. 60, passed “to remove doubts respecting the functions of juries in cases of libel.” This statute was •designed to change a practice that had been in vogue something over half a century at least, for the judge, on trial of an indictment or information for libel, to charge the jury in terms similar to those used by Chief Justice Lewis in the Croswell 'Case; a practice which, although upheld by the King’s Bench, Lord Mansfield delivering the opinion, in The King v. The Dean of St. Asaph, 3 T. R. 428, note, was, on the argument •of that cause, assailed by Lord Erskine, with admirable eloquence and force, as modern, fluctuating, unconstitutional and dangerous. The statute declared and enacted tha% on such trials, the jury might give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information, and should not be required or directed by the court or judge to find the defendant guilty merely on
Under this statute it became the practice for the judge to-tell the jury, if the case so warranted, that in his opinion the publication before them was of the character and tendency attributed to it by the indictment, and that, if it were so in their opinion, the publication was an offence against the law. This practice was declared by all the judges in Rex v. Burdett, 4 Barn. & Ald. 95, to be in strict conformity with the statute, Abbott, C. J., stating that the act was not intended to confine the matter in issue exclusively to the jury, without having the opinion of the judge, but to declare that they should be at liberty to exercise their own judgment upon the whole matter in issue, after receiving thereupon the opinion and direction of the judge. To the same effect are the expressions of the-judges in Baylis v. Lawrence, 11 Ad. & E. 920, and in Parmiter v. Coupland, 6 Mees. & W. 105, where Baron Parke speaks of the opinion of the judge, upon the character of the particular publication, as being matter of advice to the jury.
Having before them as guides .this English statute thus-settling the wavering practice of the courts, the argument of Hamilton and the opinion of Kent, the legislature of New York, in April, 1805, drafted and enacted the law before mentioned, and from one or another of those precedents every form of expression contained in the preamble and first two-sections of the enactment is derived. They are as follows:
“ Whereas doubts exist, whether, on the trial of an indictment or information for a libel, the jury have a right to give-their verdict on the whole matter in issue: Be it therefore enacted, &c., 1. That on every such indictment or information,, the jury who shall try the same shall have a right to determine the law and the fact, under the direction of the court, in like manner as in other criminal cases, and shall not be directed or required by the court or judge, before whom such indictment or information shall be tried, to find the defendant
We are thus introduced to the very language of that part of our constitutional provision which affords a complete defence to one prosecuted for libel, when he makes it appear to the jury that he published the truth, with good motives, and for justifiable ends, and which establishes the right of the jury, in such prosecutions, to determine the law and the fact. Its sources, I think, render its meaning evident.
It was not intended to affect the duty of the court to decide all questions of law relating to the admission of testimony and such other matters as are preliminary to the final submission of the ease to the jury; nor to affect its duty to instruct the jury with regard to their legitimate province in the decision of the cause, and with regard to those general principles of the criminal law and of the law of libel, which are of a technical nature, and with which the jury can scarcely become acquainted, save through the instructions of the court. None of these matters was ever subject to doubt in prosecutions for libel, nor did they bring about any of the legislation either in England or in this country. On these points the instructions of the court retain the same authority as they previously possessed.
Having thus defined the provinces of the court and jury, we turn to the errors assigned upon the record before us.
The record shows that the court laid down to the jury the •general legal notion of a libel in terms of which the plaintiff in error does not complain, then read to them the paragraph of the constitution before mentioned, and charged them that ■they had full power to determine the law and the fact, and :that they should decide (1) whether the article was libelous; ■ (2) whether the defendant published it; and (3) whether it was published by him for justifiable ends ; that if they were ■satisfied beyond a reasonable doubt that the article was libelous, was published by the defendant, and was not published .for justifiable ends, it was their duty to convict the defendant.
But we find in it no cause for complaint by him. There is no principle in the common law on which the publication could be regarded as privileged, outside of the defence.which our constitution either sanctioned or created, viz., that the article was true and published with good motives and for justifiable ends. The instructions favored the plaintiff in error far beyond this provision, for they afforded him a defence if only his ends were justifiable, ignoring any necessity for the truth of the publication and the goodness of his motives.
The court further stated to the jury that if they believed ,the article was published for the purpose of ridiculing Henry Cook and putting him in contempt, it was their duty to convict ; and to this also exception was taken.
As an abstract proposition, it would not be true that a person should be convicted of libel for publishing matter intended to ridicule another and bring him into contempt; for circumstances can be supposed where even such a publication would coiné within the protection of the constitution. But taken in connection with the previous instructions to the jury as to their full power over all questions, the language here complained of cannot have been understood by them as-more than an expression of opinion, by way of advice rather than of peremptory direction, and, so regarded, there is nothing in it- illegal or improper as applicable to the case in hand.
Other exceptions were taken to the- refusal of the court to-charge that certain sentences in the article were not libelous ; that the truth of other portions justified them, and that, if the jury believed that Henry Cook had published an untruthful article reflecting on the son of Mrs. Petzold, and had refused to make a correction, and thereupon Mrs. Petzold had sought-redress by an attempt to chastise Mr. Cook, the defendant vrasjustified and entitled to an acquittal.
. On each of these points the refusal of the court was accompanied by a reference of the matter to the determination of the-jury, and sometimes by recommendations which we think were well warranted by the evidence. Had the court undertaken
No error injurious to the plaintiff was committed in the charge.
Outside of the charge, the first exception is to the overruling of a challenge “for cause” presented against a juror by the plaintiff. As the juror was afterwards challenged peremptorily, and the plaintiff’s right to challenge was not exhausted in the empaneling of the jury, this action of the court, even if erroneous, could not have prejudiced the plaintiff in maintaining his defence upon the merits, and so forms no- ground for reversal. Rev., p. 264; Crim. Pro., § 89. Moreover, the challenge was not legally interposed. It was merely “ for cause,” without stating whether it was for principal cause or to the favor, and without setting out the facts on which it rested. This is insufficient. State v. Spencer, 1 Zab. 196.
The next exception arises as follows: on the defence a witness testified that he had seen Mrs. Petzold just before the time of the alleged cowhiding, under circumstances tending to show that the publication in that respect was true; on cross-examination the prosecutor was allowed to ask the witness whether he then noticed her condition as to sobriety, and on redirect examination the question, “ What did the woman say, that led you to believe that she was drunk?” was excluded. These rulings were not erroneous. The condition of Mrs. Petzold as to sobriety had some bearing upon the truth of the assertion that she then cowhided Mr. Cook, and the witness’' observation of her was legitimate evidence of her being drunk or sober. If he had formed his opinion on that point because of anything she said, it would have been competent on redirect
The last exception is to the overruling of an offer, by the plaintiff in error, of certain newspaper articles published by Henry Cook two months before the publication charged as libelous. It did not appear, and no offer was made to show, that there was any relation between those articles and that set forth in the indictment. They were therefore properly overruled as irrelevant.
We find no error requiring the reversal of the judgment, • and it should be affirmed.