
    Supreme Court—General Term—Third Department.
    
      November, 1886.
    PEOPLE v. PARR.
    Libel—Evidence—Infamous Chime.
    Upon the trial of a defendant for the publication of a libel witnesses cannot testify that they recognized the complainant as the person referred to in the libel without stating the facts upon which such recognition was based.
    The prosecution must show facts identifying the complainant with the person libelled; the mere opinion .of witnesses that the complainant was the person intended is not sufficient.
    The publication of a libel is not an “ infamous crime.”
    Appeal by the defendant John Parr from a judgment of the Special Sessions of Albany convicting him of libel.
    The libel complained of was published in a paper called “ The Owl,” of which defendant was the editor, and was as follows:
    “ The Pearl street tailor should not try to come his wiles over M. M. of Division street. He can be seen any day walking on the opposite side of the street, guying the house and trying to entice her out. If the tailor would look to home he would have enough to do, as Maggie is too innocent for a rake like Leo.”
    The other facts are sufficiently set forth in the opinion.
    
      H. J. Meegan, for defendant appellant.
    
      Hugh Reilly, district attorney, for the people, respondents.
   Learned, J.

This was a prosecution for an alleged libel upon one Leo Oppenheim. His name is not mentioned in the libel. But it was claimed by the people that he was intended, and that he was pointed out by the words “ the Pearl street tailor ” and the name “ Leo.”

On a trial the witness was asked on behalf of the people, “ When you read this article did you recognize its application to any particular individual?” He answered, “I did.” Then he was asked, “ Who was the person that you recognized that this article referred to ? ” and he answered “Leo Oppenheim.” These questions were duly objected to, and exceptions taken. Similar questions were put to two other witnesses; objections made and exceptions taken.

This evidence was improper. It was for the people to show facts from which the jury might infer that Oppenheim was the person intended by defendant. The testimony of witnesses that they recognized Oppenheim as referred to, was only the statement of their opinion. This matter was not one for experts. Their opinion must have been based upon facts known to them. They should have testified only to such facts.

If this kind of testimony were proper, then the defendant c.ould have called witnesses to testify that they did not recognize Oppenheim as the person referred to. But such testimony would be plainly improper.

This principle is distinctly decided in Van Vechten v. Hopkins, 5 Johns., 211; and Gibson v. Williams, 4 Wend., 320; Maynard v. Beardsley, 7 Wend., 561; Weed v. Bibbins, 32 Barb., 315, and by implication in Wright v. Page, 36 Barb., 441.

Two cases are cited by the people as sustaining the court below viz.: People v. Croswell, 3 Johns, 340, and Genet v. Mitchell, 7 Johns, 120. In the former no question or decision was made upon this point. The whole discussion is upon the right of a jury to determine the whole issue, and on the right of defendant to show the truth of the statement alleged to be a libel. In the other c'ase the court recognizes Van Vechten v. Hopkins as sound law. The testimony given by the witness had not been objected to and was quite immaterial. It is said by the counsel for the people that the judgment should not be reversed because there is evidence that defendant admitted to witness that Oppenheim was intended, but we cannot say that the jury would have believed the evidence as to this admission, if it had not been forfeited by the illegal evidence of the opinions of witnesses.-

We are referred to the language of the court in Hayes v. Ball, 72 N. Y., 420, as supporting the position of the people. The question now under consideration was not involved in that case. It is very possible that in the case of verbal slander, if all the persons who heard the alleged slander testify that they understood the words in a sense entirely harmless, this may be a good defense. Because in that case the defendant has not conveyed to the mind of any person a charge or disgraceful statement in respect to the plaintiff.

But the present is a very different case. Here in a libelous'publication. The attempt is not to show that it was understood by all readers in a harmless sense. But the attempt is to show that it was aimed at a particular person by the opinion of several who read it. It is unquestionably proper and important to show that fact. But it must be shown by circumstances surrounding the parties. The circumstances which induced the belief in the minds of the witnesses that Oppenheim was the man intended would perhaps have produced the same belief in the minds of the jury. At any rate the defendant was entitled to the judgment of the jury on that point.

The question is raised as to the jurisdiction of "the Court of Special Sessions of Albany. It has jurisdiction among other things of “ all misdemeanors not being infamous crimes committed within the city.” Section sixty-eight, Code of Civil procedure. The defendant claims that the publication of a libel is an infamous crime.

The repeal by chapter 593, Laws of 1886, of section 31,' title 7, chapter 1, part 4, Revised Statutes has left us to the common law to determine what are infamous crimes. It is quite unfortunate that so important an exception should be expressed in the words which have always been vague in their meaning.

The question what crimes were infamous used to be important principally because conviction for any of such crimes excluded the convicted person from being a witness. That rule is abrogated. Penal Code, 714; Code Civil Procedure, 832. Still the words “ infamous crimes ” in section 68, above cited, must apply to such crimes as were “infamous” at common law.

. Blackstone mentions, as making one infamous, treason, felony, perjury or conspiracy, or, if for some infamous offense he hath received judgment of the pillory, trumble or the like, as to be branded, stripped or stigmatized, or hath been attainted of false verdict, praemunire or perjury; 3 Black. Com., 370, 364. If the punishment inflicted were to determine the question of infamy, then the publication of a libel might have been an infamous crime. Mitcher’s case, 14 State Trials, 1095. But the better opinion is that it is the nature of the crime, and not the punishment, which determines the question, and that an infamous crime is an offense “ implying such a condition of moral principles as carries with it construction of a total disregard to the obligation of an oath,” per Sir Wm. Scott, quoted in 1 Green. Evid. 373. Abbott’s Law Digest, title Infamous Crimes.

In that section Greenleaf gives as the enumeration of infamous crimes, treason, felony and the crimen falsi. The publication of a libel certainly is not within the first or the second, nor is it within the third, the crimen falsi, which implies some fraud or deceit, and which of itself must indicate a bad and an immoral character. Now, on the contrary, the publication of a libel, while it sometimes may be done with very bad intent, does not necessarily imply disgraceful or immoral motives. It is not necessary to refer to the many well-known convictions in England of men influenced by patriotic motives which prove this assertion. Certainly the offense is not one which involves necessarily deception or dishonesty. On the contrary, its publicity is the essence of the wrong.

We do not think, therefore, that the publication of a libel is in its nature an infamous crime, though it may some time show a malevolent or a contemptible spirit.

Judgment and conviction reversed and new trial granted.

Bocees and Land ok, JJ., concur.

Note.—The question as to the admissibility of the opinion or impression of a witness as to whom the libel referred is one upon which the decisions .are conflicting. Many of these will be found in a note to the report of the case of Van Vechten v. Hopkins, cited in the principal case, in 4 Amer. "Dec., 352. Other cases are given in 52 Amer. Dec,. 770 ; 63 Id. 268 ; 81 Id. 341.  