
    The People of the State of New York, Respondent, v. William F. Sherlock, Appellant.
    
      Libel —a defendant may not testify to his belief without stating facts in support thereof—charge by the judge as. to the law.
    
    Under section 244 of the Penal Code providing that a libelous publication is excusedwhen it is honestly made in the belief of its truth and upon reasonable. grounds for this belief,” a person on trial upon a charge of having published a libelous article cannot testify to his belief in the truth of the article until he has stated facts and circumstances from which a legal inference canbe drawn that there was at least, some-ground for such belief.
    A judge presiding at the trial may and should instruct the jury as to the law, so. long as he does not arrogare to himself the power conferred on the jury by the Constitution to be the sole judges of both the law and the fact.
    Appeal by the defendant, William F. Sherlock, from a judgment of the Court of General Sessions of the Peace in and for the county of Hew York-in favor of the plaintiff, entered in the office of the clerk of said' court on the 19th' day of June, 1900, convicting him of the misdemeanor of publishing a libel. .
    
      Benjamin Patterson, for the appellant.
    
      FranTdin Ba/rtlett, for the respondent.
   McLaughlin, J.:

On the 28th of September,-1899, the defendant was the editor of a newspaper called The Unionist, in which on that day the following article was published : '

“ Here’s a Pretty Mess :
“ A brief statement of. the condition of affairs in the rat-trap composing room.
It is now generally- conceded that Clark is making more money than any -of the stockholders. •
“ Is it possible that Clark is practicing the same tactics as when lie was foreman of the Providence Journal, from which he was "unceremoniously bounced, so it is reported, for making false entries on the pay-roll and pocketing the proceeds ?
“ Many merchants of Rhode Island cherish his memory very dear.
If The Sim wants to get a true certificate of the character of its head rat, let them consult ex-Governor Brown and other well-known citizens of Rhode Island.
“ The rates of wages paid in The Sun establishment range from $12 up to $27 per week. It may go a little higher on the books, but if Mr. Clark is living up to his reputation it is safe to say that he gets a good share of it.”

For this publication the defendant was subsequently indicted, tried and convicted of a libel and sentenced to be imprisoned in the penitentiary for the term of three months. From this judgment he has appealed, and asks for a reversal upon the ground (1) that the trial court erred in not permitting the defendant to testify as to his belief of the truth of the article published, and (2) in instructing the jury as to the law.

A libel is defined by the Penal Code (§ 242) as follows: “ A malicious publication, by writing, printing, picture, effigy, sign or otherwise than by mere speech, which exposes any living person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes, or tends to cause any person to be shunned or avoided, or which has a tendency to injure any person, corporation, or association of persons, in his or their business or occupation, is a libel.” The following section (243) provides that “ a person who publishes a libel is guilty of a misdemeanor,” and the next section (244) provides that “ A publication having the tendency or effect mentioned in section 242 is to be deemed malicious if no justification or excuse therefor is shown. The publication is justified when the matter charged as libelous is true, and was published with good motives and for justifiable ends. 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.”

It was admitted upon the trial that the article was published in a. newspaper called The Unionist and that the defendant at that time was in charge cf such newspaper, he himself saying: “ I. have admitted here that I was the editor of The Unionist on the 28th day of September, 1899. I Was. so regarded. I was regarded as tlm editor. * * * The article in question passed through my hands. 1 saw it. * * * Q. But do you assume the responsibility for this alleged libel ? A. Yes, sir.”

The defendant was then permitted to testify fully as to his motives-in publishing the article, and among other things he stated: “ Well,, my motives were as a union man, as a believer in trades unions, as a-man who has been always a trades union man, ever since he became^ a journeyman, almost—I wanted to show the public—I wanted to show Col. Bartlett and his fellow-stockholders the calibre of the= man that they had as the foreman of the Hew York Sun. * * *' Well, my motives were, of course, as I said, to show the calibre of this man. I had heard, in an indirect way, of him for over ten years. * * * . My motive was to show the calibre of the complainant, Mr. Clark, and not only to The Sun people, but to other employers of union men throughout the city. That is about all I can' say in reference to motive.” He was then asked the following question: “Q. How, Mr. Sherlock, when yon published this alleged libel, did you in good faith and honesty believe the-statements therein contained to be true ? ” An objection was made-by the counsel for the People, which was sustained, and the defend-ant was not permitted to answer. The defendant insists that the-court erred in making this ruling, and this is the first ground alleged, as calling for a reversal of the judgment.

We are of the opinion that the ruling was right! Section 244 of the Penal Code, above referred to, it will be noticed, provides that a publication is excused “ when it is honestly made in the belief of its truth and upon reasonable grounds for this beliefP . It is not excused unless the person making the publication has reasonable-grounds ” for believing that the statements made are true. Therefore, before a party can be permitted to testify as to his belief, the facts upon which that belief is based must be given, so. that the jury may determine not only whether the publication was honestly made, but whether the person had. “ reasonable grounds ” for thn belief. One cannot testify as to his belief as to the truth of an. article published until he has first stated the facts and circumstances upon which the belief is predicated.

If we are right in this conclusion, then it necessarily follows that the ruling was correct, because not a single fact or circumstance was given by the defendant establishing, or tending to establish, the truth of the statements contained in the publication. On the contrary, it seems, to have been conceded that Clark never had been employed by nor had ary connection whatever with the Providence Journal / that he was not “ unceremoniously bounced; ” that he never made “ false entries on the pay-roll,” and that hr never pocketed “ the proceeds.” The defendant having utterly failed to give any testimony justifying his belief, the court properly held that he could not testify as 1 o his belief. (Powers v. Skinner, 1 Wend. 451; Hotchkiss v. Oliphant, 2 Hill, 510; Rice v. Withers, 9 Wend. 139.)

The publication of a libel is a wrong, and the person against whom the article is directed is presumed to have sustained damage, irrespective of the intent of the publisher '(Holmes v. Jones, 147 N. Y. 59), and when the person responsible for the publication is sought to be punished in a criminal proceeding, he cannot excuse himself by testifying that he believed the article was true, until he has given facts and circumstances from which a legal inference can be drawn that there was at least some ground for the belief.

This brings us to a consideration of the other ground of error alleged, viz., that the court erred in instructing the jury as to the law of the case. After a careful consideration of the charge as made, we do not think it is subject to the criticism made upon it by the appellant’s counsel, and it is to be observed that the defendant’s counsel at the trial was so impressed, because we do not find that any exception was then taken to the charge or any requests made on behalf of the defendant in which the court did not acquiesce. What is complained of is that the trial court, in effect, took from the jury “the right to determine the'law.” ' But the most casual con-' sideration of the charge as a whole will show that the court not only did not do this, but on the contrary stated to the jury that they were the sole judges of “ the law and the fact.” This statement was made to the jury no less than five times during the course of the charge, and near the close of the charge the court said : “ You are the sole judges of the law and the facts. You may decide this case as jour consciences aud your judgments dictate, and I believe, you will do so.” While at the beginning of the charge substantially the same thing was stated. The court, in calling the jury’s attention to the constitutional provision to the effect that it was the sole judge, of the law and the fact, said : “ By the organic law of this State, namely, the Constitution, which is the highest law of this State, it is provided that the jury are to be the sole judges of both the law and the fact.” And the jury could not have misunderstood the instructions thus given, simply because the learned trial judge thereafter commented on this provision of the Constitution (N, Y. Const, art. 1, § 8) or explained to them the law relating to libel. A judge, where a person is on trial for the crime of libel, not only has the right, but it is his duty to tell the jury what the law is, in order that they may properly discharge their duty; and so long as he does not interfere with their functions by arrogating to himself the right and power which belongs to them — that is, to determine both the law and the fact — no error is committed; Our conclusion, therefore, is that the defendant had a fair trial. The jury were properly instructed by the judge presiding at the trial, and they found, upon evidence sufficient to sustain the finding, that the defendant was guilty of the charge set out in the indictment, and it follows that the judgment must be affirmed.

Van Bbunt, P. J., O’Bbien, Ingbaham and Hatch, JJ., concurred.

Judgment affirmed.  