
    The People of the State of New York, Appellant, v. Thomas P. Stark, Respondent.
    An omission in an indictment for libel to state the manner in which the alleged malicious publication was made, is not a compliance with the provision of the Code of Criminal Procedure (£ 275, sub. 3) requiring a, plain and concise statement of the act constituting the crime without unnecessary repetition and the defect is fatal.
    
      It seems, that if the libel complained of is a newspaper publication it is sufficient to state that it was published in a designated newspaper, having a circulation in the county in which the indictment is found.
    Where, therefore, such an indictment contained no averment as to the manner of publication, or of the person or persons to whom it was addressed, or by whom it was seen or read, or that the names of such persons were unknown to the grand jurors, held, that the indictment was defective and a conviction under it error.
    Reported below, 59 Hun, 51.
    (Argued December 14, 1893;
    decided January 17, 1893.)
    Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made the first Tuesday of January, 1891, which reversed a judgment entered upon a verdict of the Court of Sessions of Wayne county, convicting the defendant of the crime of publishing a libel, dismissed the indictment and discharged tlie defendant.
    Tlie facts, so far as material, are stated in tlie opinion.
    
      J. IF". Dumcdl for appellant.
    The indictment fully states the crime charged and is in no way defective. (Code Crim. Pro. §§ 275, 279, 289; Penal Code, §§ 242, 243, 245; People v. Martin, 2 N. Y. Cr. Rep. 51; Peoples v. Bowe, 3 id. 160; 3 Whart. 934-940; 2 id. 2601; People v. Dimick, 107 N. Y. 29, 30.) The motion in arrest of judgment was and could only be machí on the ground that the facts stated in the indictment do not constitute a crime. (Code. Crim. Pro. §§ 467, 331, 332; People v. Menkin, 3 N. Y. Cr. Rep. 233-242; People v. Thompson, 41 N. Y. 11; People v. Allen, 48 id. 28.) The court did not err in sustaining the objection to the following questions asked the defendant when he was being examined as a witness in his own behalf, “ Did you have any malice or malicious intent when you sent that paper,” and “ Did you have any malice in sending this one?” (Penal Code, §§ 242, 244; Powers v. Skinner, 1 Wend. 451; Hotchkiss v. Oliphant, 2 Hill, 510; Baldwin’s Case, 3 C. H. Rec. 96-161; Rice v. Withers, 9 Wend. 138; Root v. Ring, 7 Code Rep. 613; 4 Wend. 114; Washburns v. Coole, 3 Den. 110; 2 Roscoe’s Cr. Ev. 888; R. v. Harvey, 2 B. & C. 157; R. v. Burdett, 4 B. & Ald. 95; DeBouillon v. People, 2 Hill, 248; Penal Code, §§ 244, 718; People v. Saxton, 22 N. Y. 309; Shaw v. Stine, 8 Bosw. 161; Ballard v. Lockwood, 1 Daly, 164; Fiedler v. Darwin, 50 N. Y. 443.) The evidence of Price was conqietent to prove malice. For notwithstanding malice is to be inferred from the publication, express malice may be proved. (2 Roscoe’s Cr. Ev. 889, 1201; Townsend on L. & S. 650, 653, 654; Johnson v. Brown, 57 Barb. 118; Fry v. Bennett, 28 N. Y. 328.) While defendant was a witness in his own behalf he was asked this question: “ Did you afterwards receive that letter?” The objection thereto was properly sustained. (Cherritree v. Roggen, 67 Barb. 124.) Defendant offered in evidence the opinion of a Kansas judge published in a reporter in an action involving the question of the location' of the county seat at Chumaron, or Ingals, rendered after Stark had published the libel in question. This evidence was properly excluded. (Willover v. Hill, 72 N. Y. 38.) It was proper to prove a repetition of the libel, and the letter published was defendant’s letter, affirming the truth of the libelous article published by Stark, by sending same to Farnum. (Townsend on Slander, 650, 653, 654; Fry v. Bennett, 28 N. Y. 328; Johnson v. Brown, 54 Barb. 118.) The publication of the libelous article was sufficiently proved. (Penal Code, § 138, 245; Cherritree v. Roggen, 67 Barb. 124; Prescott v. Toucey, 18 J. & S. 14.) Where a libel is once published the party is guilty of publication in every county where the same is circulated. (2 Roscoe’s Cr. Ev. 890, 899; 3 Pick. 304; 2 Whart. on Ev. 2556-2560.) The court did not err in overruling defendant’s challenge to the juror Charles E. Wilbur. (Code Crim. Pro. §§ 376, 377; Code Civ. Pro. §§ 1027, 1028, 1029.)
    
      W. Henry Dmis for respondent.
    The facts stated in the indictment do not constitute a crime. (People v. Sullivan, 4 N. Y. Cr. Rep. 177; People v. Taylor, 3 Den. 93; The King v. Walker, 3 Camp. 264; Dedier v. People, 22 N. Y. 180; Tuttle v. People, 36 id. 436; Phelps v. People, 72 id. 349; Wood v. People, 53 id. 511; 1 Bish. on Crim. Pro. §§ 505, 625, 633, 635, 639; People v. Allen, 5 Den. 76-78; Greenl. on Ev. § 10 ; U. S. v. Almeida, Whart. Prec. 1061; Comm. v. Miller, 2 Pars. 197; R. v. Marsh, 1 Den. Crim. Cas. 505 ; A. v. Power, 12 Cox’s Crim. Cas. 235 ; Comm. v. Clark, 6 Gratt. 675; Whart. Crim. PI. & Pr. § 221; Bishop’s Crim. Pro. §624; People v. Wilber, 4 Park. Crim. Rep. 19; People v. Coon, 15 Wend. 277; Archibald’s Cr. Pl. 38,48; Chitty’s Cr. Law, 171, 173, 281, 289; People v. Dumar, 106 N. Y. 512.) It was error to allow the witness Farnum to testify under objection to receiving the paper containing the alleged libelous matter, etc., because no count had been made in the indictment as to how or in what way the publishing took place, and • therefore no evidence should have been received of any facts or circumstances showing or tending to show the publication, (Clark v. Vose, 19 Wend. 232; Myers v. Malcolm, 6 Hill 292; Boyle v. Colman, 13 Barb. 42.) Defendant was not permitted to answer this question: “ Did you have any malicious intent when you sent that paper ? ” This was error. (Seymour v. Wilson, 14 N. Y. 568; Peoples. Hart, 35 Barb. 630; Kerrains v. People, 60 N. Y. 228; Courtland Co. v. Herkimer, 44 id. 26; Cunningham v. Fresborn, 11 Wend. 241,254; McKown v. Hunter, 30 N. Y. 625; 4 Kern. 567; Hubble v. Alden, 4 Lans. 228; 21 N. Y. 121; 25 id. 430.) The comments of the learned court were erroneous and may have prejudiced the jury against the defendants. (2 Starkie on Slander, 85; King v. Warring, 6 Esp. 13; Penal Code, § 244.)
   Maynard, J.

The judgment of conviction in this case has been reversed, the indictment dismissed, and the defendant discharged upon the ground that the indictment, which was for libel, was fatally defective hi not sufficiently describing the offense charged to have been committed. The particular defect pointed out consists in an omission to state the manner in which the alleged malicious publication was made. The pleading charges in substance that the defendant at a time and place designated wrongfully, unlawfully and maliciously published of and concerning one Asa T. Soule a false, scandalous and malicious libel in the “ words and tenor following,” comprising a verbatim statement of the defamatory matter published. There is no averment as to the manner of publication, whether by writing, printing or posting or otherwise than by mere speech, or of the person or persons to whom it was addressed, or by whom it was seen or read; or that the names of such persons were unknown to the grand jurors. Tested even by the liberal rule of the Criminal Code, I do not think such .an indictment contains a plain and concise statement of the act constituting the crime. So far as the manner of publication is concerned it does not allege any fact but a mere conclusion of law. It was held by this court in People v. Pwnar (106 M. Y. 502), that the indictment must both charge the crime and state the act constituting it, and the principal reason for requiring a specific statement of the act, is the right which the accused has to be informed of the precise accusation which he is required to defend.

In commenting upon the change wrought by the new system of pleading in other respects, Judge Danforth, at p. 512, says, “ Under either system an offense consists of certain acts done or omitted under certain circumstances, and under neither is any indictment sufficient which does not accurately and clearly allege all the ingredients of which the offense is composed, so as to bring the accused within the true meaning and intent of the statute defining the offense.”

The particular act proven in this case was the sending by the defendant through the mail of a newspaper, in a wrapper, addressed, to one Ammon S. Farnum at Savannah, Wayne Co. The proof of this criminal act must have heen before the grand jury or the indictment could not have been found, and there was therefore no obstacle in the way of the pleader, rendering it difficult or embarrassing to state the essential facts which constituted the crime. Such a rule of pleading is always practicable and easy of observance. If the libel complained of is a newspaper publication, it would be sufficient to say that it was published in a designated paper having a circulation in the county in which the indictment is found. But under the precedent established in this case, it would be sufficient to state that the libel had been published in the county named, and follow it with proof of publication in some metropolitan daily, copies of which were taken within the county, and the defendant would be ignorant of the specific acts which he must disprove to establish his innocence until confronted with the People’s witnesses at the trial. The charge contained in this indictment -would have been equally well proven had it been shown that the defendant procured its publication in a Rochester journal which circulated in the town of Savannah, or in any other newspaper having a like circulation, or wrote a letter containing the offensive article to some resident of that town, or caused it to be posted in a conspicuous place therein, or in many other ways which might readily be suggested. An indictment which exposes the defendant to attack from so many unexpected quarters fails to adequately fulfill the office which it was intended to perform as a pleading in a complete system of criminal procedure.

I, therefore, think that the General Term was right in the conclusion which it reached, and that its order should he in all respects affirmed.

All concur, except Earl, Peckham and Gray, JJ., dissenting.

Order affirmed.  