
    The People of the State of New York, Respondent, v. William F. Sherlock, Appellant.
    1. Libel — Appeal—Error not Excepted to not Reviewable. Where upon the trial of an indictment for libel, the record shows jurisdiction in the court and regularity in its proceedings, an alleged error not excepted to, that the trial court in its charge invaded the province of the jury, which, under section 8, article 1 of the Constitution, is authorized to determine the law and the fact, is not reviewable by the Court of Appeals, and the fact that.a constitutional question is involved does not alter the rule.
    3. When Charge, Even if Excepted to, would not be Reviewable. Even if the alleged error were reviewable, the charge would he proper, where, after stating his opinion of the law, the trial judge distinctly charged that the jury under the Constitution was the judge alike of the law and the fact.
    8. Competency of Evidence a Question for the Court. While the jury in such a case is to be the judge of the law and the fact, questions as to the competency of evidence offered by either party are to he decided by the court in the same manner as upon other trials.
    4. Defendant’s Belief of Truth of Publication Inadmissible. Where no proof is given by the defendant of the truth of the libelous charge, and he has testified fully to his motive and intent in publishing it, his testimony that at the time of the publication he believed the article to he true is properly excluded, since the defendant’s belief can operate only in mitigation of punishment, and not as a defense, except in the case of excusable libel.
    (Argued January 30, 1901;
    decided March 12, 1901.)
    5. Belief not Admissible under Section 244, Penal Code. The testimony is not admissible under section 244 of the Penal Code, providing that “tiie 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,” where the publication is an attack upon the previous honesty of the foreman of a newspaper office, which in no sense is a public affair within the meaning of that section. ' -
    6. Belief not Admissible on Question of Good Faith in Publication of a Privileged Communication. Nor is the testimony admissible on the question of good faith in the publication of a privileged communication where it was not confined to those having an interest in the information, hut was published in a newspaper which was for sale and circulated among the public generally.
    
      People v. Sherlock, 56 App. Div. 422, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered upon an order made December 31, 1900, affirming a judgment of the Court of Special Sessions of the Peace of the city and county of New York convicting the defendant of the crime of libel.
    The facts, so far as material, are stated in the opinion.
    
      Benjamin Patterson and George W. Miller for appellant.
    By reason of the instructions of the court to the jury as to the law of the case and its charge to the effect that they were hound by his instructions, the constitutional provision that the jury shall determine both the law and the fact in a criminal prosecution for libel .was violated. (Cancemi v. People, 18 N. Y. 128.) The trial court erred in excluding the testimony of the accused as to his belief as to the truth of the alleged libel. (George v. Jennings, 4 Hun, 66; Holmes v. Jones, 147 N. Y. 59; Rex v. Reeves, Peake’s Add. Cas. 83; People 
      v. Baker, 96 N. Y. 340; Kerrains v. People, 60 N. Y. 221; McKown v. Hunter, 30 N. Y. 625; D. C. M. Ins. Co. v. Hachfield, 73 N. Y. 229; Fagnan v. Knox, 66 N. Y. 525.) It was an error of law and violation of the constitutional provision for the trial judge to charge the jury that the' publication was not an excusable statement. (Warner v. P. P. Co., 132 N. Y. 181; Lovell Co. v. Houghton, 116 N. Y. 525; Moore v. M. Nat. Bank, 123 N. Y. 426.)
    
      Franklin Bartlett and Charles E. Le Barbier for respondent.
    It was not error in the trial judge to refuse to allow the defendant to testify to his belief as to the truth of the alleged libel. (Hastings v. Lusk, 22 Wend. 410; Klinck v. Colby, 46 N. Y. 421; Hamilton v. Eno, 81 N. Y. 116.) The trial court committed no error in the charge to the jury. (Franklin v. State, 12 Md. 236; Sparf v. U. S., 156 U. S. 51.)
   Cullen, J.

The appellant was indicted for having published in a newspaper called the Unionist a false and malicious libel on Charles M. Clark, then in the employ of one of the large daily papers in the city of New York. At the time of the offense there was a labor war ” between the organized or “ union-” printers and the newspaper on which Clark worked. The material part of the alleged libel in substance charged Clark with having, when foreman of the Providence Journal, made false entries in the payroll of the paper and appropriated the money represented by such entries. The Unionist was published as the representative or organ of the labor unions, and copies of the paper were publicly exposed for sale throughout the city of New York.- On the trial the appellant admitted his responsibility for the libelous publication and sought to justify and excuse it. lie was convicted of the offense charged against him, and that conviction has been affirmed by the Appellate Division of the Supreme Court.

The first ground on which it is sought to reverse the judgment below is that the trial court in its charge invaded the province of the jury, which, under section 8, article 1 of the Constitution, is, in criminal prosecutions or indictments for libel, authorized to determine the law and the fact. We are of opinion that the question is not properly before us, because no exception was taken on the trial to the charge of the court. By section 527 of the. Code of Criminal Procedure the Appellate Division is authorized to grant a new trial in a criminal case when satisfied that the verdict against the prisoner is against the weight of evidence, against the law, or that justice requires it, whether exceptions have been taken in the court below or not. But by section 528, which regulates appeals to this court, the broad power given to the Appellate Division of the Supreme Court is bestowed upon us, only where the judgment is of death. In other cases we can take notice only of legal errors appearing in the record or raised by exception on the trial. (People v. Driscoll, 107 N. Y. 414; People v. Lyons, 110 N. Y. 618; People v. Leonardi, 143 N. Y. 360.) The fact that the alleged error involves a constitutional question does not increase our power of review, which is limited by the Constitution itself and legislation enacted in pursuance of it. The case is not analogous to that of Cancemi v. People (18 N. Y. 128). There the record showed on its face that the verdict was rendered by only eleven jurors. It was held that such a number did not constitute a legal jury, and, therefore, there was no jurisdiction to render the verdict. In Messner v. People (45 N. Y. 1) the record failed to show that the prisoner was asked what he had to say why judgment should not be pronounced against him. It was held that the defect was fatal, and that judgment could not be awarded until the defendant had been given an opportunity to move in arrest. In this case, however, the record shows jurisdiction in the court and regularity in its proceedings. Erroneous rulings of the trial court on the admission of evidence, or in instructions to the jury constitute legal error only when exceptions have been taken.

But if we may look at the charge of the trial judge, we find no error therein. While the court stated its opinion of the law, the jury were several times distinctly instructed that under the Constitution it was the judge, alike of the law and the fact. It is not necessary to review the struggle that long prevailed between courts and juries as to their respective rights in prosecutions for libel; the history of the contest is common learning of the profession. The controversy was settled in this state by the enactment of chapter 90 of the Laws of 1805, which provided that the jury should have the right to determine the law and the fact “ under the direction of the court in like manner as in other criminal cases,” and that the truth of the libel when published with good motives and for justifiable ends should be a justification of the charge. These provisions of the statute have been incorporated into the Constitutions of 1821 and 1846, except that the right of the jury to determine both the law and the fact has been made unqualified. At the time of the enactment of the statute referred to and of the adoption of the Constitution of 1821, the doctrine that in criminal cases the jury had the right as well as the power to determine both the law and the facts, if not universally accepted, prevailed to a very great extent. That seems to have been the view of Chancellor Kent. (See People v. Croswell, 3 Johnson’s Cases, 336.) The law was finally settled otherwise in this state in Duffy v. People (26 N. Y. 588) where it was held that in criminal cases (except prosecutions for libel), as well as in civil cases, the jury is bound to take the law from the court. The question was not authoritatively determined in the Federal tribunals until the recent decision of the Supreme Court of the United States in Sparf and Hansen v. United States (156 U. S. 51). In the opinions delivered in that case is to be found a most exhaustive review of the reported cases occurring early in the last century. An examination of the reports of those cases shows that even those judges who held most firmly the doctrine that the jury was the final judge of the law as well as of the facts, never deemed it inconsistent with that doctrine to declare to the jury their own views of the law. The learned judge who wrote for the minority in the Spawf and Hansen case, holding that the old rule still prevailed, says : To assist them (jurors) in the decision of the law, they receive the instructions of the judge, hut they are not obliged to follow his instructions.” The rule which we have been discussing still obtains in many of the states, in some by express constitutional enactment. Tet in these states, so far as our research goes, it is the practice of the trial judge to state his opinion of the law, at the same time instructing the jury that the final determination is with it. The charge of the learned trial court stated the law applicable to the case with entire correctness.

There is but. one .exception which it is necessary for ns to notice. The appellant was permitted the greatest latitude in his attempt to substantiate the charge of dishonesty made against the prosecutor. No proof, however, was given which sustained the charge. The defendant became a witness on 1ns own behalf and testified fully to his motive and intent in publishing the libel. He was then asked if at the time of its publication he believed the truth of the article. The question was objected to and excluded over the defendant’s exception. It is claimed that this ruling was error and that the defendant was entitled to the benefit of the excluded evidence. In discussing this question it is to be premised that the function of the court in ruling on the admission of evidence is in no way affected or limited by the consideration that the jury is to determine the law and the fact when the cause is finally submitted to it. The question of the competency of evidence offered by either party must be decided by the court, in the same manner as upon other trials. In the dissenting opinion in Sparf v. United States (supra) it is- said: “ The question whether particular evidence shall be admitted or not is one to be decided before the evidence can be submitted to the jury at all, and must be, as it always is, decided by the court; and this is so, whether the admissibility of the evidence depends, as it usually does, upon a question of law only; or depends largely or wholly upon a question of fact, as whether dying declarations were made under immediate apprehension of. death, or whether a confession of the defendant was voluntary, of whether sufficient foundation has been laid for the introduction of secondary evidence, or for permitting a witness to testify as an expert.” In Commonwealth v. Knapp (10 Pickering, 477) it was held that “Although the jury have the power, and it is their duty to decide all points of law which are involved in the general question of the guilt or innocence of the prisoner, yet when questions of law arise in the arraignment of the prisonei’, or in the progress of the trial, in relation to the admissibility of evidence, they must be decided by the court, and may not afterwards be.-reviewed by the jury.” (To the same effect, see Thibault v. Sessions, 101 Mich. 279.) The belief of the defendant in the truth of the article was not admissible in justification of the libel. This was the rule at common law and neither the statute of 1805 nor the constitutional provisions have changed it. In Commonwealth v. Snelling (15 Pickering, 337), under a Massachusetts statute substantially similar to our own, the trial court ruled that the belief of the defendant that the facts were true was not admissible in evidence to rebut the presumption of malice. This instruction was held proper. The court said: “But how is this defense (justification) to be made ? By proof of the truth of the matter, charged as libelous ; not his belief of the truth, not his information, nor the strength of the authority upon which such belief was taken up. Ho question can arise as to the good motive or justifiable end, until the truth is prox'ed. * * * It is not necessary, to render an act malicious, that the party be actuated by a feeling of hatred or ill-will towards the individual, * * * but if, in pursuing that design, he willfully inflicts a wrong on others, which is not warranted by law, such act is malicious.” Had the defendant given evidence tending to prove the truth of the libelous charge a different question would be presented. To establish a justification in a criminal prosecution for libel it is necessary not only to show the truth of the libel, but also that it was published “ with good motives and for justifiable ends.” It is proper, therefore, that a defendant after having given evidence as to the truth of the charge made by him, should be allowed to testify to his belief in the truth as bearing on the question of his motive, as the truth alone is not a defense. But where no proof of the truth of the charge is given, the defendant’s belief can operate only in mitigation of punishment and not as a defense, except in the case of excusable libel.

By section 244 of the Penal Code, “ 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.” Tliis provision seems to be entirely new, and I cannot find its history prior to the enactment of the Penal Code in 1881. It was not in the Code as it was reported by the codifiers in 1850. It does not deal with the cases of privileged communications, for they are covered by section 253, and it was always a good defense to a prosecution for libel that the communication was privileged. But whether a false charge is excusable pr not under the Penal Code depends not only on the belief of the defendant and the grounds for such belief, but also on the subject-matter of the publication. It must consist “ 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.” The pecuniary honesty of Clark as foreman of a newspaper office was in no sense a public affair. It is not necessary for us to now enumerate the cases which would fall within this provision; it is sufficient to say that the one before us does not. The Constitution enacts that the truth of a publication, when made with good motives and for justifiable ends, shall be a defense. The legislative enactment goes a step further and provides that even if the publication is not true, if made in belief of its truth and upon reasonable grounds for that belief it shall also be a defense; but not in all cases; only in cases of the conduct of public affairs or of things offered to or explained to the public. As this publication did not consist of such comments, belief in its truth did not tend to excuse the defendant.

Dor was the evidence admissible on the question of good faith in the publication of a privileged communication. Such a communication is privileged only when it is confined to those having an interest in the information (Sunderlin v. Bradstreet, 46 N. Y. 188); also if made voluntarily it must be made by one interested in or entitled to make it. The charge was not made to Clark’s employer, but in the defendant’s paper which was for sale and circulation among the public generally.. As already said, the public had no interest within the meaning of the section of the Code in the subject of Clark’s acts while a foreman of the Providence newspaper. In no view of the case and the evidence was the excluded testimony competent.

The judgment appealed from should be affirmed.

Parker, Oh. J., Gray, Bartlett, Martin, Yann and Werner, JJ., concur.

Judgment of conviction affirmed.  