The People of the State of New York, Respondent, v. Charles G. Sherman et al., Appellants

The People of the State of New York, Respondent, v. Charles G. Sherman et al., Appellants. TJpon tlie trial of an indictment for libel, it appeared that the libelous article, which related to the disbursement of moneys in connection with the-comptroller’s office in the city of T., was printed in a newspaper, published by a corporation with which all the defendants were connected. Testimony was given on the part of the prosecution by L. and H., reporters connected with the paper, that the article was written by L., and after its appearance in the first edition of the paper a question was raised as to the truth of the charges. L. and H. were sent by defendants to the comptroller’s office to ascertain the facts and charges. They reported that they were false, and an article was prepared by H. for the second edition, containing a retraction, which defendants declined to publish, but issued the second edition with the libelous article therein. The testimony of L. and H. as to their going to the comptroller’s office was contradicted by the defendants, each of whom denied any knowledge of the article until after the publication of the second edition. The prosecution was thereupon permitted to prove, under objection and exception, by a clerk in the comptroller’s office, that on the day in question L. and H. came to said office and looked over the books. Held no error. (Argued October 88, 1886; decided November 23, 1886.) Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made December 2, 1885, which affirmed a judgment of the Court of Sessions of the county of. Rensselaer entered upon a verdict convicting the defendants of the crime of libel. The facts, so far as material, are stated in the opinion. Nathaniel C. Moah for appellants. On questions upon which there is a direct conflict in the evidence the illegal admission or rejection of evidence, bearing in the slightest degree thereon entitles the party against whom the erroneous ruling is made to a new trial. (People v. Haynes, 55 Barb. 450,456-459 ; Baird v. Gillett, 47 N. Y. 186, 188 ; Carroll v. Diemel, 95 id. 252,256; N. Y., etc., v. Gleason, 78 id. 503,515; Anderson v. Rome, etc., 54id. 334, 341-3; Rex v. Addis, 6 Carr. & P. 388; Commonwealth v. Bosworth, 22 Pick. 397; Rex v. Webb, 6 Carr. & P. 595; Rex v. Wilkes, 7 id. 372.) A party cannot sustain his own witness by proving by an independent witness he made the same statement at a prior time, or as to an independent fact testified to by such witness. (Smith v. Stickney, 17 Barb. 489, 491-2; People v. Finnegan, 1 Park. Cr. 147, 150-1; Herrick v. Smith, 13 Hun, 448-9 ; People v. Rugg, 21 Week. Dig. 85; 34 Hun, 632; Stolp v. Blair, 68 II1. 541, 543-4; Childs v. State, 55 Ala. 25, 28 ; Snyder v. Com., 85 Penn. St. 519, 521; Webb v. State, 29 Ohio St. 351, 357-8; Deshon v. Merchants' Ins. Co., 11 Metc. 199.) Where it is claimed the testimony of a witness was given under the influence of some motive prompting him to make a false or colored statement, it may be shown he made similar statements when the imputed motive did not exist. (Herrick v. Smith, 13 Hun, 446; People v. Finnegan, 1 Park. Cr. 150-1.) Where there is evidence in contradiction, tending to show that the account of the transaction 'given by the witness is a fabrication of a late date, it may be shown that the same account was given to him before its ultimate effect and operation, arising from a change of cir-. cumstances, could have been foreseen. (People v. Finnegan, 1 Park. Cr. 151; Bank v. Shakman, 30 Wis. 333, 336 ; Church v. Howard. 79 N. Y. 415, 423; Wright v. Nostrand, 94 id. 31, 41.) The paper being published by a corporation, having an editor whose duty it was to see that libelous articles were not published, defendants are not liable for the publication, unless they personally took part in it. (People v. England, 27 -Hun, 139; Peck v. Cooper, 8 Bradw. [111.] 403.) The corporation was liable. ( Van Arnum v. McCune, 32 Hun, 316, 317; Emmons v. Pottle, 16 Q. B. Div. 354.) Evidence that an editor was appointed and directed the publication is not sufficient. There must be affirmative evidence that defendants participated in the publication of the libel. (Regina v. Holbrook, 4 Q. B. Div. 42, 45, 50-1; 28 Eng. Rep. 681, 684, 688-9; Peck v. Cooper, 8 Bradw. [III.] 403.) An actual criminal act or intent by the defendants personally must be shown. (Regina v. Holbrook, supra; 2 Bish. Cr. Law [7th ed.], § 923 ; 2 Whart. Cr. Law [9th ed.], § 1627, note 4, Lord Coleridge, Ch. J., 734.) In addition to proof of publication, the people were bound to show malice and criminal intent. Placing the onus on "defendants of rebutting them, instead of the people to show them, when it rested on them, is ground for a new trial. It gave the jury an erroneous standard by which to. weigh the evidence. (Cochran v. Dinsmore, 49 N. Y. 249, 252; Lamb v. Camden, etc., 46 id. 271, 280-2; Costigan v. Mohawk, etc., 2 Denio, 609, 616; People v. McCann, 16 N. Y. 58, 70; Sutro v. Fargo, 41 N. Y. Sup. Ct. 233-4; People v. Willett, 36 Hun, 501, 509, 511.) Charles E. Patterson for respondent. The testimony of DeFreest was admissible in corroboration of the other witnesses, Lowrey being an accomplice in the commission of this crime. (Code of Grim: Pro., § 399.) Proof as to the extent of the libel was competent. (Fry v. Bennett, 28 N. Y. 324, 330.) It is discretionary with the court to allow a witness to be called at any stage of the caseto supply proof inadvertently omitted. It may be done even after the summing up to the jury was commenced. (Folie v. People, 17 How. 565 ; Stephens v. People, 4 Park. 396 ; S. C,, 19 N. Y, 549; Manke v. People, 17 Hun, 410; 78 N. Y. 611.) A libelous publication is to be deemed malicious if no justification or excuse therefor is shown. (Penal Code, § 244; King v. Root,. 4 Wend. 113 ; Fry v. Bennett, 5 Sandf. 54, 62; Fry v. Bennett, 28. N. Y. 224; Townshend on Libel and Slander, §§ 87, etc.) [MAJORITY — Miller, J.] Miller, J. The defendants were convicted of participation in the publication of a libel against one Sheary. The alleged libelous article was published in a newspaper printed by a corporation with which all the defendants were connected in some capacity. Upon the trial testimony was given by Lowery and Hennessey, two reporters connected with the paper, to establish that the libelous article in question was written by Lowery; that it was published in the first edition of the newspaper in question; that upon its perusal immediately after the printing of the newspaper, a question was made as to the truth of the charges contained in the article published, which related to the disbursement of money for street-cleaning purposes, in connection with the comptroller’s office of the city of Troy, and thereupon said Lowery and one Hennessey were sent by the defendants to the comptroller’s office to ascertain if the charges in the printed article were true. They reported that the same were false, and an article was written by Hennessey in season for the second edition containing a retraction which defendants declined to publish, and issued the second edition, which contained said libelous article as previously published. The testimony of Hennessey and Lowery in regard to their going to the comptroller’s office was contradicted by the defendants, and each of them denied any knowledge of the libelous article until after it had been published in the second edition of the newspaper. The prosecution then called as a witness one De Freest, a clerk in the comptroller’s office, who testified that between three and four o’clock on the day in question Hennessey and Lowery came to the office of the comptroller and looked over the books. The evidence was confined to this single fact. The defendants’ counsel objected to the evidence upon the ground, among others, that it was not competent for the people to corroborate the alleged truthfulness of the witnesses who had previously testified as to the same fact, by pr'oving that a fact which they stated to have occurred in the absence of the defendants, or either of them, was true. The objection was overruled and the defendants separately excepted to the ruling of the judge. We think there was no error in the admission of the evidence objected to. Hennessey had sworn that the defendants, with the exception of Sherman, held a meeting after he and Lowery had been to the comptroller’s office, and notified them that the printed article was untrue. The testimony objected to and introduced corroborated Hennessey’s evidence. The evidence previously introduced tended to establish that all the defendants, with the exception of Sherman, had knowledge of the sending of Lowery and Hennessey to the comptroller’s office; that they had made an examination there and had found the article in question to be false ; that a retraction was prepared and the publication thereof refused, and the libelous article republished. The testimony, therefore, of T)e Freest strongly sustained the other evidence introduced. It related to the principal question involved, whether the defendants had knowledge of or participated in the alleged libelous publication. It was a corroboration in regard to the main issue involved upon the trial. Although the facts testified to by De Freest had been previously proven, yet, as it was material and bore upon the whole case, it was competent to establish, by another witness, what had already been proved. It added to the weight of the testimony introduced as to a very important fact and was entirely competent additional proof bearing upon the issues presented. Even if it be regarded as corroborating another witness, as it related to the main question of the defendants’ guilt, it was entirely relevant. As Lowery was an accomplice, and on his evidence alone no conviction could be had, the corroboration was proper, and the evidence material to prove that defendants had knowledge and notice as to the falsity of the charges made. The authorities cited by the learned counsel for the appellants to sustain his position, that the evidence was inadmissible, are not, we think, in point. The visit to the comptroller’s office was a very material fact, which bore directly upon the innocence or guilt of the defendants. It related to the motive of the defendants and the question of malice, which was involved upon the trial. If the defendants knew that the charges made were false and untrue before the publication of the second edition of the newspaper, and had an opportunity to correct the same, proof of such knowledge was material and important. The time of the visit was important and the testimony was limited mainly to that, and might well have been proved by any number of witnesses. In the case of People v. Haynes (55 Barb. 450), which is relied on, the evidence held to be incompetent related to a collateral matter which had no direct bearing upon the charges made, while the testimony here was direct and connected with the gravamen of the offense alleged. The other authorities cited are also inapplicable. If the testimony here can be regarded as a corroboration of an accomplice, it related to a fact which tended to fix the guilt upon the persons charged with the offense; but, as we have seen, it was otherwise admissible, as bearing upon the main issue involved and as constituting a part of the res gestae. We have examined the other questions raised by the appellants’ counsel and find no ground for holding that any error was committed by the court in its rulings in regard to them. They are sufficiently considered, so far as material, in the opinion of the General Term. The judgment and conviction were right and should be affirmed. All concur. Judgment affirmed.