Drake v. State

• Decision Date: 10 November 1890
• Citation: 20 A. 747,53 N.J.L. 23
• Parties: DRAKE v. STATE.
• Court: New Jersey Supreme Court

20 A. 747

53 N.J.L. 23

DRAKE

v. STATE.

Supreme Court of New Jersey.

Nov. 10, 1890.

(Syllabus by the Court.)

On error to the quarter sessions of Union county; McCORMICK. HYER, and WILEY, Judges.

Argued, June term, 1890, before BEASLEY, C. J., and MAGIE and DIXON, JJ.

Mr. Gilhooly, for plaintiff in error. Mr. Lindaberry, for the State.

DIXON, J. The plaintiff in error was indicted, tried, and convicted in the Union county quarter sessions for publishing the following newspaper article: "An alleged editor cowhided by an indignant woman. There was much excitement yesterday over the cowhiding of one of the publishers of the Herald by a lady whose home is at Elizabeth and Jefferson avenues. Her family, like many others in this city, have been outraged by a villainous statement in that contemptible sheet. The lady called at the office and demanded a retraction, which was obsequiously promised but never performed by the publisher. Upon ascertaining that the vilification had not been contradicted, the lady, boiling with indignation, again visited the establishment, and inquired for Henry Cook, one of the publishers. Mr. Cook hastened to meet his visitor, but had he suspected what was in store for him he would sooner have sprung from the old pulpit in his office into one of the graves which yawned beneath his window. As the lady had called upon 'business,' she came fully prepared to transact it. 'You are the man,' she said, 'who promised to contradict a lying statement in your miserable sheet.' 'Madame, I'—stammered the so-called newspaper man. 'Don't interrupt me, sir, until I am through,' said the lady. 'You have done my family a foul wrong, and I want to know why you did not keep your promise and make reparation. Why didn't you do so?' 'I—I—I—forgot about it. Yon see this office is in very warm water. We have all we can do to raise money to keep this paper afloat; and, besides, we have a libel suit on again at this term of court, and we can't remember all that we promise. We shan't notice your case any further, because we don't want to,' stammered the so-called editor. 'You don't, eh? Then I will compel you to.' And, suiting the action to the word, she drew from her dress a stout whip, and before the alleged editor could beat a retreat she struck him savagely across the head. Howling with pain, the alleged newspaper man sprang over the counter and bounced away, but, being overtaken by the lady, was again lashed until he cried for' mercy.' 'I will take the first opportunity I can get to give you another trouncing,' consolingly remarked the woman, as she folded up her whip and took her departure, leaving the sobbing editor in the arms of his stalwart 'frog on a stump' partner, who vigorously used the office towel in wiping the blood from his friend's face. The affair is' all the talk' among the fraternity, most of whom laugh at the editor for showing the white feather, and allowing himself to be horsewhipped under his own vine and fig tree, which is so heavily mortgaged that, no matter how much the court this term may mulct the concern in for defamation of character, not a cent can be recovered. One of our mounted staff ascertained this morning that Mr. Cook will be able to get about by to-morrow." Upon a writ of error, bringing the record to this court, he presents several reasons for the reversal of the judgment. Of these the most important relates to the action of the trial court, with regard to the respective functions of the court and the jury, under our constitution, which declares, (article 1, § 5:) "Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, 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."

The meaning of this clause, so far as it bears upon the present case, will, I think, be best perceived by recurring to its origin, which is easily discoverable. The paragraph is an almost verbal copy of article 7, § 8, of the New York constitution of 1821, which was drawn from a statute of that state, enacted in 1805. That statute was brought to pass because of an equal division among the justices of the supreme court of New York in the case of People v. Croswell, reported in appendix to 3 Johns. Cas. 337. Croswell had been tried in 1803, at the Columbia circuit, before Chief Justice Lewis, for a libel on President Jefferson, and had been found guilty under a charge by the chief justice that it was no part of the province of the jury to inquire or decide on the intent of the defendant, or whether the publication in question was true or false or malicious; that the only questions for their consideration and decision were—First, whether the defendant was the publisher of the piece charged in the indictment; and, second, as to the truth of the innuendoes; that the intent of the publisher, and whether the publication in question was libelous or not, was, upon the return of the postea, to be decided exclusively by the court. On a motion made at bar in 1804 for a new trial, Alexander Hamilton, on behalf of the defendant, contended that the liberty of the press consists in the right to publish, with impunity, truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals; that the abuse of this right is to be guarded against by subjecting the exercise of it to the animadversion and control of the tribunals of justice, but that this control cannot safely be in trusted to a permanent body of magistracy, and requires the effectual co-operation of court and jury that it is the general rule of criminal law that the intent constitutes the crime, and that the intent is an inference of fact to be drawn by the jury; that in determining the character of an alleged libel, the truth or falsehood, is, in the nature of things, a material ingredient for ascertaining; the intent, though the truth may not always be decisive; that, in the general distribution of power, in any system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that, as often as they are not blended, the power of the court is absolute and exclusive; but that in criminal cases, the law and fact being always blended upon the general issue of 'not guilty,' the jury, for reasons of a peculiar and political nature, for the security of life and liberty, are in trusted with the power of deciding both law and fact, although, nevertheless, the court are the constitutional advisers of the jury in matter of law." Of the four judges who heard the argument, KENT and THOMPSON, JJ., favored a new trial, LEWIS, C. J., and LIVINGSTON, J., opposed it. In the opinion prepared by Judge KENT the positions of Mr. Hamilton were supported and illustrated by the copious learning of that distinguished jurist. He cited the Case of the Seven Bishops, 12 State Tr. 183, as an auspicious and memorable instance of the exercise of the right (not merely the power) of the jury to determine both the law and the fact, and declared that that right had received the sanction of some of the highest authorities in the law; and he announced his own conclusions to be that, upon every indictment or information for a libel, where the defendant puts himself upon the country by a plea of not guilty, the jury have a right to judge, not only of the fact of the publication and the truth of the innuendoes, but of the intent and tendency of the paper, and, whether it be a libel or not, in short," of the whole matter put in issue upon such indictment or Information;" that in this, as in other criminal cases, it is the duty of the court, "according to...