
    SUPREME COURT—APP. DIV.—FIRST DEPT.
    Dec. 30, 1909.
    THE PEOPLE v. STAR COMPANY.
    (135 App. Div. 517.)
    (l). Jury—Qualification—Prejudice.
    One called as a juror who states that it will not require evidence to overcome any prejudice against the defendant and that he will not be influenced by prejudice and can render an unprejudiced verdict upon the evidence is qualified, and can only be excluded by a peremptory challenge.
    .(2). Trial—Charge.
    A defendant in a criminal action cannot complain of an erroneous charge favorable to him.
    (3). Criminal Libel—Corporation May Be Convicted of,
    A corporation may be indicted for and convicted of criminal libel, the evil intent of its agents who write and print the libel being attributable to it.
    Appeal by the defendant, the. Star Company, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 30th day of April, 1909, convicting the defendant of libel.
    
      Clarence J. 8hemn, for the appellant.
    
      Robert 8. Johnstone, for the respondent.
   Scott, J.:

The defendant, a domestic corporation printing and publishing a daily newspaper, appeals from a judgment of conviction of the offense of criminal libel. Of the libelous character of the ■article complained of and its publication by defendant there can be no question. The defendant complains that its challenge to one of the jurors was improperly overruled whereby it was compelled to resort to a peremptory challenge. The chief defect charged against the juror appears to be that he was too intelligent and conscientious. Notwithstanding this, he repeatedly said that he did not think that it would take any evidence to overcome any prejudice he might have against the newspaper published by defendant; that he did not think he would be influenced thereby, and that he believed that he could render a verdict upon the evidence alone uninfluenced by any feeling. This was sufficient to qualify him as a juror, and the challenge was properly overruled. “ It is sufficient under the statute now in force if the juror believes that his opinion will not influence his verdict, etc., and it is not essential that he should be positive on the subject.” (People v. Hampartjoomian, 196 N. Y. 77, 24 N. Y. Crim. 22.)

The defendant also criticizes a sentence in the charge, which was possibly erroneous or superfluous, because there was no evidence in the case to which it was applicable. But it was distinctly more favorable to the defendant than it was entitled to,, and, therefore, furnishes no ground for reversal.

The defendant’s chief contention, and the only one requiring extended consideration, is that being a corporation, and having neither soul, conscience, mind moir feeling, it is incapable of entertaining a mischievous and malicious intent, which is an essential element in criminal libel.

A criminal libel is defined by the Penal Code (under which the defendant was indicted and tried) as a malicious publication ” (§ 242). Section 244 the same Code provides that “ A publication having the tendency or effect mentioned in section 242 is to be deemed malicious if no jurisdiction or excuse therefor is shown,” and section 718, subdivision 3, provides that “ Each of the terms malice ’ and maliciously ’ imports an evil intent, or wish, or design to vex, annoy or injure another person.”

The Court of Appeals has very recently pointed out the development and evolution of the law respecting the punishment of corporations for crimes involving the element of intent. (People v. Rochester R. & L. Co., 195 N. Y. 102.) At one time it was generally considered that a corporation was incapable of committing a crime. By slow degrees, and following upon the extension of the practice of organizing corporations for the purpose of avoiding the penalties of illegal acts, the courts have reached a different conclusion until the present rule has come to be recognized as that enunciated by Mr. Bishop in his New Criminal Law, section 417, as follows: “ But within the sphere of its corporate capacity, and to an undefined extent beyond, whenever it assumes to act as a corporation it has the same capabilities of criminal intent and of act—in other words, of crime—as an individual man sustaining to the thing the like relations. . . . Some have stumbled on the seeming impossibility of the artificial and soulless being, called a corporation, having an evil mind or criminal intent. . . . But the author explained in another work that since a corporation acts by its officers and agents their purposes, motives and intent are just as much those of the corporation as are the things done.”

It was recently said by the Supreme Court of the United States: It is true that there are some crimes, which in their nature cannot be committed by corporations. But there is a large class of offenses . . . wherein the crime consists in purposely doing the things prohibited by statute. In that class of crimes we see no good reason why corporations may not be held responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred upon them.” (New York Central R. R. v. United States, 212 U. S. 481.) Nothing is more common than the rendition of verdicts for punitive damages in civil actions for libel, which implies a publication inspired by actual malice. It is true that such malice is often inferred from gross carelessness or other circumstances, hut the inference must he that actual malice-existed. Hence such verdicts are to he sustained only upon the presumption that the offending corporation was capable of entertaining and being charged with actual malice. So-, also, the Supreme Court of Massachusetts in holding that a corporation might be held guilty of a criminal contempt, said: We think that a corporation may be liable criminally for certain offenses of which a specific intent may be a necessary element. There is no more difficulty in imputing 1» a corporation a specific intent in criminal proceedings than in civil.” (Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 297.) To the same effect is United States v. MacAndrews & Forbes Co. (149 Fed. Rep. 823). We find no difficulty, therefore, in holding that a corporation may be indicted for and convicted of the crime of criminal libel, the évil intent of its agents who write and print the libel being attributable to it.

The judgment of conviction is affirmed.

Pattbesow, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Judgment affirmed.

NOTE ON CRIMINAL LIABILITY OF CORPORATIONS.

GENERALLY.

Corporations are often indicted for neglect of duty, or for positive misfeasance, and the punishment, upon conviction, is by the imposition of a fine. People v. Albany & Vermont, 12 Abb. Pr. 171.

A corporation is liable to the same extent, and under the same circumstances, as a natural person, for the consequences of its wrongful acts or omissions. New York v. Schuyler, 34 N. Y. 30.

Where a statute prohibits the doing of an act by a specified class of corporations and persons, and makes any violation of that act a misdemeanor, all active participants in such violation are equally guilty, whether they be a corporation, or directors, or other agents or servants of the corporation. People v. Clark, 8 N. Y. Crim. 179.

Semble, that action by attorney-general or criminal prosecution are only means open to redress injuries occasioned to individuals by unlawful combinations of others engaged in similar line of business with view to influencing and controlling the business and injuring or embarrassing the prosecution thereof by those not assenting to or joining in the combination. Thomas v. Musical, etc., 121 N. Y. 45.

The court has power to punish a corporation for a wilful disobedience of the order of the court. People v. Albany & Vermont, 12 Abb. Pr. 171.

CRIMINALLY LIABLE FOR.

Creating and permitting public nuisance. State v. Morris, 23 N. J. L. 360.

Keeping disorderly house. State v. Passaic, 54 N. J. L. 260.

Erecting a bridge across a navigable stream without a draw. Commonwealth v. New Bedford, 2 Gray 339.

Obstructing public highway. State v. Vermont Central, 27 Vt. 103.

Failing to keep their property in repair. Waterford v. People, 9 Barb. 161

Failing to keep plank-road in repair. Syracuse v. Tully, 66 Barb. 25.

Failing to repair bridges. Com. v. Central, 12 Cuching, 242.

Taking tolls without completing bridge as provided by law. Com. v. Newburyport, 9 Pick. 142.

Failure to perform public duties. People v. Albany, 11 Wend. 539.

Failure to furnish sufficient transportation facilities. State v Concord, 59 N. H. 85.

Failure of railroad to give warning signals. Louisville v. Commonwealth, 13 Bush 388.

Sabbath-breaking. State v. Baltimore, 15 W. Va. 362.

Inflicting injuries resulting in death. Com v. Fitchburg, 120 Mass. 372.

Usury. State v. Clark, 2 S. D. 568.

Foreign, doing business without a license. Standard v. Commonwealth, 55 S. W. 8.

NOT CRIMINALLY LIABLE FOR.

Ordinary crimes and misdemeanors. Reg. v. Great North, 9 Q. B. 315.

Assault and battery. Commonwealth v. Punxsutawney, 24 Pa. Co. Ct. 25.

Authorized acts, Danville v. Commonwealth, 73 Pa. State 29.

INDICTMENT.

An indictment lies against a corporation for neglecting to do what the common good requires; as where the corporation of a city have power to direct the excavating, deepening or cleansing of a basin connected with a a river, and neglect to take the necessary measures in that respect after such basin becomes foul by the aggregation of mud and other substances, so that the water is corrupted and the air infected by noisome and unwholesome stenches, and thus a- nuisance is created. People v. Albany, 11 Wend. 539.

Any remedy which the public may have for a breach or neglect of duty imposed by the railroad act upon a railroad corporation, must be enforced by mandamus, quo warranto, or indictment. People v. Albany & Vermont R. R. Co., 24 N. Y. 261.

No provision in code for compelling a corporation which has been indicted to appear before the court and plead to the indictment. People v. Equitable, 6 N. Y. Crim. 189.  