
    Supreme Court—Appellate Division—First Department.
    February, 1900.
    PEOPLE ex rel. PADDOCK v. CARROLL
    1. Criminal law—Proof.
    Section 289 of the Code of Criminal Procedure dispenses with an averment connecting the defendant with the defamatory words, but not with proof.
    2. Same.
    Though an indictment for libel need not set forth any extrinsic facts for the purpose of showing the application of the defamatory matter to the party libeled, and that it is sufficient to state generally that the same was published concerning him, the fact that it was so published— that is, concerning him—must be established on the trial.
    3. Same.
    There must be proof in support of the charge that the defamatory words were published concerning the corporation, and that they had relation to its business.
    
      Appeal from an order of the special term dismissing writs of habeas corpus and certiorari sued out by him, and remanding defendant to the custody of the keeper of the city prison.
    Benjamin Patterson, for appellant
    Charles E. LeBarbier, for respondents.
   BARRETT, J.

The relator was committed by a city magistrate upon a charge of libel. The affidavit upon which he was held states that he “ did maliciously publish of and concerning the Sun Printing & Publishing Association the following defamatory language, to wit: ‘ The Sun is against good wages,’ and ‘ Sun now practices what it long has preached, that workingmen have no rights that capital is bound to respect.’ ” The affidavit shows the manner in which these defamatory words were published, but fails to connect the corporation therewith. The charge itself was sufficient (Code of Civil Procedure, sec. 289); but there was no evidence to support it in the particular referred to. This section 289 of the Code of Criminal Procedure dispenses with an averment upon that head, but not with proof. On the contrary, after providing that an indictment for libel need not set forth any extrinsic facts for the purpose of showing the application of the defamatory matter to the party libeled, and that it is sufficient to state generally that the same was published concerning him, adds : “ And the fact that it was so published ”—that is, concerning him—“ must be established on the trial.” Conforming the preliminary inquiry before a magistrate to this provision, the charge was doubtless sufficient. There should, however, have been some evidence tending to support it. Otherwise the magistrate was without jurisdiction to hold the relator. The libel complained of was a malicious publication by writing or printing, which had a tendency to injure the corporation named in its business. But its business was not stated, nor was it shown that it published the Sun specified in the libel, nor that the Sun so specified was a newspaper. There was, in fact, no proof in support of the charge that the defamatory words were published concerning the corporation, nor that they had any relation to its business.

The other points presented by the appellant are without merit, but, because of the lack of proof in the particular mentioned, the order should be reversed and the relator discharged. All concur.  