ARTICLE 126. LIBEL.* SECTION 1340. Libel defined. 1341. Libel a misdemeanor. 1342. Malice presumed; defense to prosecution. 1343. Publication defined. 1344. Liability of editors and others. 1345. Publishing a true report of public official proceedings. 1347. Indictment for libel against nonresident. 1348. Restriction on indictment for libel. 1349. Power of court; place of trial. 1350. Privileged communications. 1351. Threatening to publish libel. § 1340. Libel defined. A malicious publication, by writing, printing, picture, effigy, sign or otherwise than by mere speech, which exposes any living person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes, or tends to cause any person to be shunned or avoided, or which has a tendency to injure any person, corporation or association of persons, in his or their business or occupation, is a libel. Derivation.-Penal Code, § 242. This definition is broad enough to embrace all the particulars of a definition of libel at common law. 2 Kent's Com. 16; 4 Bl. Com. 150. See also note, New York Reports, Bender's Annotated Ed., Book 25, p. 66, and Book 29, p. 772; 2 Bish. Crim. Law (7th ed.), § 907; Moak's Underhill Torts, 119; 23 Alb. L. J. 46; 35 Eng. Rep. 647; 15 Am. St. Rep. 333, note; Bornman v. Star Co. (1903), 174 N. L. 220; Gates v. New York Recorder Co. (1898), 155 N. Y. 228; Bergman v. Jones (1883), 94 N. Y. 52; McFadden v. Morning Jour. Assn., 28 App. Div. 508, 51 N. Y. Supp. 275; Gallagher v. Bryant (1899), 44 App. Div. 527, 531, 60 N. Y. Supp. 844, aff'd 162 N. Y. 662; Gray v. Brooklyn, etc. (1898), 35 App. Div. 286, 55 N. Y. Supp. 35; Gray v. Sampers (1898), 35 App. Div. 270, 55 N. Y. Supp. 3; Shelby v. Sun Printing Co. (1886), 38 Hun 474, aff'd 109 N. Y. 611; Carpenter v. Hammond, 1 N. Y. St. 551; Peo. v. Eastman (1915), 89 Misc. 596, 152 N. Y. Supp. 314. "Written words are libelous in all cases, when if uttered orally they would be actionable, they may likewise be libelous when they would not support an action for slander." One who is the moving cause of the publication of a libel is as responsible * Fiere on Torts, Chapter 15, is a complete treatise on the New York Law of Libel and Slander. for the direct consequences as the publisher himself. App. Div. 520, 82 N. Y. Supp. 351. Weston v. Weston (1903), 83 The publication of a libel is not an infamous crime. Peo. v. Parr (1886), 42 Hun 313, 316, 5 N. Y. Cr. 34. A libel by mere speech is not indictable. Peo. v. Stark (1891), 59 Hun 51, 12 N. Y. Supp. 688, aff'd 136 N. Y. 538. The term "malicious" in this section means simply intentional and wilful. Roberson v. Rochester, etc. Co. (1902), 171 N. Y. 538, 556, rev'g 64 App. Div. 30, 71 N. Y. Supp. 876. Malice is essential in a criminal libel, and in that respect is different from a libel in a civil action, in which it is not necessary to establish malice, nor is proof of the non-existence of malice any defense, excepting where the plea of qualified privilege in a matter of public interest is interposed by a defendant. Peo. v. Hebberd (1916), 96 Misc. 617, 162 N. Y. Supp. 80. Criminal intent is a necessary element of the crime and the statute must be construed strictly in favor of the accused. Peo. ex rel. Carvalho v. Warden (1911), 144 App. Div. 24, 128 N. Y. Supp. 837. It is error to exclude evidence on the part of the defendant tending to show that no malicious intent existed on his part, especially where the evidence tends to show a conspiracy between the complainant and another to cause the publication with a view to prosecute the defendant. Peo. v. Stark (1891), 59 Hun 51, 12 N. Y. Supp. 688, aff'd 136 N. Y. 538. Words employed in an alleged libel are to be construed by courts and juries in the plain and popular sense in which other people would naturally understand them. Moak's Underhill Torts, 125; Cooper v. Greeley, 1 Den. 358; More v. Bennett (1872), 48 N. Y. 472, 475, rev'g 48 Barb. 229, 33 How. Pr. 177; Wright v. Page, 36 Barb. 438, aff'd 3 Keyes 581, 3 Trans. App. 134; Rice v. Parrott, 1 Cliff. 55; Carroll v. White, 33 Barb. 615. The scope of the entire article is to be considered and such construction put upon its language as would be naturally given to it. Spencer v. Southwick, 11 Johns. 573, 592; Cooper v. Greeley, 1 Den. 347, 358; More v. Bennett (1872), 48 N. Y. 475; Williams v. Godkin, 5 Daly 499. Where the language of an alleged libelous publication is ambiguous and capable of two constructions, the jury must determine as to how such language was meant and understood. Cornish v. Bennett (1902), 38 Misc. 688, 78 N. Y. Supp. 244, aff'd 82 App. Div. 636, 81 N. Y. Supp. 1121. The following publications have been held to be libelous: That the plaintiff is about to commence a suit for libel, but that he will not bring it to trial in a particular county because he is known there. Cooper v. Greeley, 1 Den. 347. Measuring and photographing a prisoner simply because he has been indicted, is a criminal libel. Peo. ex rel. Gow v. Bingham (1907), 57 Misc. 66, 21 N. Y. Cr. 559, 568, 107 N. Y. Supp. 1011. So a false and malicious publication that one's house has been searched under legal process for stolen goods supposed to be secreted therein. State v. Smiley, 37 Ohio St. 30, 41 Am. Rep. 487. A charge that a person, at a time and place mentioned, met the wife of another, and "committed an abomination in the sight of the Lord" is not libelous per se. Peɔ. v. Isaacs (1883), 1 N. Y, (r. 148. Charging a malster with using filthy water in brewing (White v. Delavan, 17 Wend. 49; Turrell v. Dolloway, id. 426; Fidler v. Delavan, 20 id. 51; Ryckman v. Delavan, 25 id. 186); a candidate with corruption (Powers v. Dubois, 17 Wend. 63); a senator with corrupt conduct as senator is actionable though his term of office had expired before its publication (Crane v. Riggs, 17 Wend. 209); a politician with corruptly using money (Weed v. Foster, 11 Barb. 203); that a member of Congress was a fawning sycophant, a misrepresentative of Congress, and a groveling office-seeker, and that he abandoned his post in Congress in pursuit of office. Thomas v. Croswell, 7 Johns. 264. Letters discrediting financial condition of former employer of the writer held to be libelous. Peo. v. Bihler (1913), 154 App. Div. 618, 139 N. Y. Supp. 819, aff'd 210 N. Y. 592. A charge of smuggling (Stilwell v. Barter, 19 Wend. 487); of blackmail (Edsall v. Brooks, 26 How. Pr. 426, 2 Robt. 29, 17 Abb. Pr. 221; Robertson v. Bennett, 44 N. Y. Supp. 66); of swindling (Williams v. Godkin, 5 Daly 499); of dishonesty (Taylor v. Church, 1 E. D. Smith 279). An imputation of poverty may be libelous, if so alleged as to excite nothing but ridicule (Moffat v. Cauldwell [1874], 3 Hun 26); an imputation of drunkenness (Sanderson v. Caldwell [1871], 45 N. Y. 401); an imputation of insanity (Perkins v. Mitchell, 31 Barb. 461, 465; Southwick v. Stevens, 10 Johns. 443.) That a teller of a bank, while acting in that capacity, had become mentally deranged through overwork, and that while in such condition he had made injurious statements concerning the bank, which occasioned it trouble. Moore v. Francis (1890), 121 N. Y. 199, 8 L. R. A. 214. That a married man is threatened with a breach of promise suit (Morey v. Morning Journal Assn. [1890], 123 N. Y. 207), or that a married woman is living with a man not her husband. Shea v. Sun, etc. (1895), 14 Misc. 415, 34 N. Y. Supp. 703. That persons employed in a certain department "have been dismissed for alleged thefts of leather belonging to the department," with a comment that "the rascals ought to feel thankful for getting off without more severe punishment," is libelous as amounting to a charge of theft. Dwyer v. Fireman's Journal Co. (1882), 11 Daly 248; Ryer v. Fireman's Journal Co. (1882), 11 Daly 251. A charge that a lawyer was dismissed as counsel for inefficiency is libelous per se. Gibson v. Sun Printing Co. (1902), 71 App. Div. 566, 76 N. Y. Supp. 197. To charge a member of the bar as offering himself as a witness in order to divulge the secrets of his client. Biggs v. Denniston, 3 Johns. Cas. 198. Where a complaint for libel alleged that defendant composed and published concerning plaintiff, an attorney-at-law, a letter to the National Temperance Society, which stated that another person and plaintiff were conspiring to swindle defendant out of money, and continued: "I do not think you would be a party to any such rascality if you knew it, and do not think the National Temperance Society can afford to take money not their due, under or through the help of blacklegs or scoundrels, through false representations or swearing." It was for the jury to say whether these words had "a tendency to injure" plaintiff "in his business or occupation," within the meaning of this section. Clark v. Anderson, 11 N. Y. Supp. 729, 730. In Reg. v. Adams, 22 Q. B. Div. 66, defendant was tried and convicted on an indictment charging him with having unlawfully and maliciously written and published to a young woman of virtuous and modest character a defamatory letter of and concerning her, and of and concerning her character for virtue and modesty. The defendant having seen an advertisement for a situation inserted by the young woman in a newspaper, wrote and sent to her at the address given, the letter in question, which contained a proposal in plain terms that she should surrender her chastity to him for a sum of money. Held, that the conviction could be sustained, because, in all the circumstances, the defamatory letter might reasonably tend to provoke a breach of the peace. also Peo. v. Squire (1893), 30 Abb. N. C. 200. See Although the unauthorized use of a person's name and picture may be a libel as well as a violation of sec. 50 Civil Rights Law, a complainant bringing an action under such law for damages is limited to the recovery in such action. Binns v. Vitagraph Co. (1913), 210 N. Y. 51. A libel published against a non-resident is punishable as such, and this is declaratory of the common law. Sections 1346 and 1347 infra relate only to the place where indictments must be found and do not limit this section nor the definition of libel therein. Peo. v. Fornaro (1909), 65 Misc. 457, 119 N. Y. Supp. 746. The indictment must state the manner in which the publication was made, and a mere allegation that the libel specified was published by defendant is not sufficient. Peo. v. Stark (1891), 59 Hun 51, 12 N. Y. Supp. 688, aff'd 136 N. Y. 538. Where an indictment for a libel upon a printing and publishing corporation sets the publication forth verbatim, it need not state that the publication and the acts done thereunder had a tendency to injure the corporation in its business, as that will be presumed. Where such an indictment contains only a single count, it is not bad for duplicity in that it charges that the libelous statements were contained in a printed circular and also in a handbill, and particularly where it appears that only one of these instruments was published. Peo. v. McLaughlin (1901), 33 Misc. 691, 68 N. Y. Supp. 1108. Where words have been inadvertantly omitted from an indictment for libel, the court may allow the insertion thereof by amendment, if the defendant is not prejudiced thereby. Sec. 293 Code Cr. Proc. Peo. v. Clegg (1890), 10 N. Y. Supp. 675. § 1341. Libel a misdemeanor. A person who publishes a libel, is guilty of a misdemeanor. Derivation.-Penal Code, § 243. In general. See Peo. v. Parr (1886), 4 N. Y. Cr. 545; Peo. v. Eastman (1915), 89 Misc. 596, 152 N. Y. Supp. 314; Peo. v. Sherlock (1900), 56 App. Div. 422, 68 N. Y. Supp. 74, aff'd 166 N. Y. 180; Peo. v. Fornaro (1909), 65 Misc. 457, 119 N. Y. Supp. 746; United States v. Press Pub. Co. (1910), 219 U. S. 1; Roberson v. Rochester Fold'g Box Co. (1902), 171 N. Y. 538. As to pleadings in civil actions for libel and slander, see Civil Code, §§ 535, 536. § 1342. Malice presumed; defense to prosecution. A publication having the tendency or effect, mentioned in section thirteen hundred and forty, is to be deemed malicious, if no justification cr excuse therefor is shown. The publication is justified when the matter charged as libelous is true, and was published with good motives and for justifiable ends. 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. Derivation.- Penal Code, § 244. In general. See Peo. ex rel. Gow v. Bingham (1907), 57 Misc. 66, 107 N. Y. Supp. 1011, 21 N. Y. Cr. 559; Peo. v. Star Co. (1909), 135 App. Div. 517, 120 N. Y. Supp. 498. In Peo. v. Sherlock (1901), 166 N. Y. 187, 15 N. Y. Cr. 412, Judge Cullen, after quoting this section says: "This 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 (§ 1350, post), and it was always a good defense to a prosecution for libel that the communication was privileged. But whether a false charge is excusable or not under the Penal Code depends not only on the belief of the defendant and the grounds for such belief, but also on the subjectmatter of the publication." That an article published, was copied, is no defense. Hotchkiss v. Oliphant, 2 Hill 510. Nor that the author's name was given. Dole v. Lyon, 10 Johns. 447. The State Const., art. 1, § 8, provides in part as follows: "In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.” Malice. The general rule is that in the case of a libelous publication, the law im plies malice. Byam v. Collins (1888), 111 N. Y. 143, 150, rev'g 39 Hun 204; Root v. King, 7 Cow. 613, aff'd 4 Wend. 113; Washburn v. Cook, 3 Den. 110; Hunt v. Bennett (1859), 19 N. Y. 176. A petition for the removal of an official for malfeasance not libelous without direct proof of malice. Thorn v. Blanchard, 5 Johns, 508. Mitigating circumstances must be pleaded in connection with a denial of malice. Daly v. Byrne, 1 Abb. N. C. 150. Where an information was lodged against certain of the defendants for criminal libel by reason of the alleged publication of various pamphlets relating to persons engaged in the performance of a public duty, the evidence being to the effect that said defendants were influenced into believing the truthfulness of newspaper and other reports and there being no proof that the publication of said pamphlets was inspired by any personal grudge or spite or any motive ulterior to that which they believed affected the welfare of institutions in which they were interested, the conclusion is inevitable that said publications were not issued maliciously or with criminal intent and, hence, the information should be dismissed. Peo. v. Hebberd (1916), 96 Misc. 617, 162 N. Y. Supp. 80. Where a fraud charged in an alleged libel is inferred by the jury the defendant in a prosecution therefor is presumed to have had good motives, but even if the fraud is not so inferred, still if the accused was not actuated by malicious motives, he cannot be convicted of libel. Baldwin's Case (1818), 3 City Hall Rec. 161. Justification.-A charge made on mere rumor is no justification. Powers v. Skinner, 1 Wend. 451. |