
    The People of the State of New York, Respondent, v. Frank M. Cornell, Appellant.
    Fourth Department,
    May 6, 1908.
    Crime — libel— evidence in justification — specific acts.
    Where a libel upon a judge is in its terms broad enough to charge him with a lack of conception of the dignity of his position and unfitness for that position, the defendant in justification may prove specific acts of the judge while upon the bench, although the article itself only gave specific instances of misconduct at chambers.
    McLennan, P. J., dissented.
    Appeal by tlie defendant, Frank M. Cornell, from a judgment of the Supreme Court, rendered on the 27th day of April, 1906, after a trial at the Oswego Trial Term, convicting the defendant of the crime of libel. ■
    
      Frederick G. Spencer and Udelle Bartlett, for the appellant.
    W. B. Baker, District Attorney, for the respondent.
   Spring, J.:

The appellant was the editor and proprietor of the Fulton Patriot, a newspaper published in the city of Fulton, Oswego county, in January, 1906, and for some time preceding. Early in 1906 it was currently reported that Merrick Stowell, county judge and a prominent citizen of said county, was an applicant for the important position of State Commissioner of Excise, which was soon to be filled by the Governor of - the State. Judge Stowell had long been active in the management of Republican politics in the county and quite naturally had engendered considerable bitter opposition among partisans disagreeing with him. A political organization of the county bearing the name of the Roosevelt Republican League comprised members opposed to Judge Stowell, and they held a meeting in the city of Oswego, January 12, 1906, at which the candidacy of Judge Stowell was discussed and resolutions adopted animadverting severely upon his political activity, and especially while holding the office of county judge, and protesting against his selection for the State office mentioned.

The defendant was present at this meeting, participated in the discussions which were had, and at the request of some of the members published the resolutions in his newspaper, and the papers containing them were generally circulated among the citizens of the county, and he has been indicted and convicted of libel for their publication.

We do not intend to discuss the facts or questions involved, except only so far as deemed essential to enable us to pass upon certain rulings of the court, which, we believe, call for a reversal of the judgment.

The article published is lengthy and is set out in full in the indictment. The part which is now pertinent reads as follows: “ He (Judge Stowell) has been County Judge of our county for thirteen years, and during that time he has shown a pitiful and most miserable lack of conception of the dignity and nobility of judicial position. During his tenure of the County Judgeship the County Court chambers have been used for political headquarters. They have been the gathering place for the ward and town politicians from all sections of the county. In them has been erected the political throne around which the time-servers and political vassals have knelt and worshipped, and there they have either been blest or damned by the political master on the bench, according to the quality of their service. From this throne, erected in judicial position, have been issued the orders that have run and controlled the political machinery of the county. The throng that has elbowed its way back and forth, to and from this throne, on and shortly before election day, has not added dignity to the bench, because it could not be a credit nor give character to a towpatli or lumber camp.”

• The court instructed the jury that the first sentence quoted was not, to use his language, “ a general charge that Judge Stowell has shown a lack of conception of the dignity and nobility of his judicial position. It is a charge that he has shown that lack of conception of the dignity of that position because of what follows ; because of his use of the County Court chambers; because of his relations with the District Attorney; because of the persons that he has surrounded himself with, and that is all that it means.”

We think this too narrow a construction of the general language employed. The primary accusation is contained in the sweeping statement of the lack of appreciation of the judicial position which Judge Stowell held. The purpose of the article, as already noted, was to show the unfitness of Judge Stowell for the position of State Commissioner of Excise. It was charged that he had been persistent in seeking office; was arbitrary, dictatorial arid domineering in the exercise of political power. Ilis judicial conduct is then impugned, and his failure to comprehend the dignity of the position he occupied is alleged, and specific instances are given illustrating the truth of the accusation. Upon the trial the defendant, who was endeavoring to prove the truthfulness of the charges, attempted to show acts of Judge Stowell while on the bench in the court room which, it was claimed, would substantiate the accusation and tend to show his unfitness for the office for which he was an aspirant.

For instance, Judge Stowell presided at a term of the County Court at the court house of Oswego county in December, 1904. A lawyer named Mizen was in attendance and testified that he was called to the bench by Judge Stowell during a lull in the trial of a case and a conversation ensued between them. The defendant attempted to show that Judge Stowell advised the witness to get a retainer from a prisoner confined in the jail, and who had been convicted by a justice of the peace acting in 'place of the recorder of the city, appeal from the judgment of conviction, and that he, the county judge, would release the prisoner and hold the conviction worthless on the ground that the magistrate lacked jurisdiction. The court excluded this proof for the reason that the act was not committed at the judge’s chambers, and was not one of those enumerated in the article published. There was other proof offered of acts claimed to have been committed by Judge Stowell while on th¿ bench in the court house which may have tended to vindicate the truthfulness of the general charge already adverted to, which was excluded for the reason mentioned, and proper exceptions were taken to the exclusion of all this evidence.

We think proof of this character was fairly within the scope of the entire article and of the general charge quoted, and may have been important to enable the defendant to establish that he had accurately gauged the official conduct of Judge Stowell. If the defendant was able to show derelictions of Judge-Stowell while on the bench that proof supported the charge made, as well as infractions committed at chambers. The fact that defendant had stated one or two instances in vindication of the correctness of the accusation did not debar him, when its truth was challenged, from making proof of other delinquencies of the judge when acting in his judicial capacity.

For these errors in excluding the testimony referred to and limiting the article in the manner mentioned, the judgment should be reversed and a new trial granted.

All concurred, except McLennan, P. J., who dissented.

Judgment of conviction reversed and new trial granted.  