may plead a former conviction or acquittal in another state or coun. try for the same offense; and if such plea is admitted or established, it shall be a bar to further proceedings against him, for such offense. See $ 185, supra.

§ 241. Witnesses. - A person offending against any provision of this chapter is a competent witness against any other person offending in the same transaction, and must not be excused from testifying or answering any question, upon an investigation or trial for an offense under this chapter, upon the ground that his testimony might tend to convict him of a crime. But evidence given by a person so testifying, cannot be received against him, in any criminal action or proceeding.

See § 712, post. State v. Dupont, 2 McCord, 334; Wood's case, 3 C. H. Rec. 139.

CHAPTER VIII.

LIBEL.

SEC. 242. Libel defined.

243. Libel a misdemeanor.

244. Malice presumed. Defense to prosecution.

245. Publication defined.

246. Liability of editors and others.

247. Publishing a true report of public official proceedings.

248. Qualification of last section.

249. Indictment for libel in newspaper.

250. Libel against non-resident.

251. Punishment restricted.

252. Power of court, place of trial.

253. Privileged communications.

254. Threatening to punish libel.

254a. Furnishing libelous information.

§ 242. Libel defined. - A malicious publication, by writing, print. ing, 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.

What is a libelous publication. Steele v. Southwick, 9 Johns. 214; Mezzaara's case, 2 C. H. Rec. 119; Spooner's case, 3 id. 97; People v. Judah, 2 Wh. Cr. C. 26; Stone v. Cooper, 2 Den. 293; Fry v. Bennett, 28 N. Y. 324; More v. Bennett, 48 id. 472; Sunderlin v. Bradstreet, 46 id. 188; Littlejohn v. Greeley, 13 Abb. Pr. 41. Must be malicious. Coleman's case, 2C. H. Rec. 49; Cooper v. Greeley, 1 Den. 347; Riggs v. Denniston, 3 Johns. Cas. 198; White v. Delavan, 17 Wend. 49; Powers v. Dubois, id. 63; Cramer v. Riggs, id. 209; Weed v. Foster, 11 Barb. 203; Stillwell v. Barter, 19 Wend. 487; Moffat v. Cauldwell, 3 Hun, 26. Repetition of libel after recovery. Woods v. Pangburn, 75 N. Y. 495. Libelous charges. Dwyer v. F. J. Co., 11 Daly, 248, 251; Kingsbury v. Bradstreet, 35 Hun, 212; U. S. Ass. v. Mer. Agency, 16 Abb. N. C. 419; Weed v. Foster, 11 Barb. 203; Ryckman v. Delavan, 25 Wend. 186; Fidler v. Same, 20 id. 51; Turrill v. Dolloway, 17 id. 426; Robertson v. Bennett, 44 Supr. 66; Williams v. Godkin, 5 Daly, 499; Edsall v. Brooks, 26 How. 426; Sanderson v. Caldwell, 45 N. Y. 401; Giles v. State, 6 Ga. 276; Morey v. Morning J. Ass'n, 123 N. Y. 207; Moore v. Francis, 121 id. 199; More v. Bennett, 48 id. 475; Carroll v. White, 33 Barb. 615; Wright v. Paige, 36 id. 438; aff'd, 3 Trans. App. 134; Perkins v. Mitchell, 31 Barb. 465; Nash v. Benedict, 25 Wend. 645. Ryer v. Fireman's J. Co., 11 Daly, 251; Hetherington v. Sterry, 28 Kans. 426; Bradley v. Cramer, 59 Wis. 309; State v. Smily, 37 Ohio, 30; Steketee v. Kimm, 48 Mich. 322; Smith v. Smith, 73 id. 445. See further, Shelley v. Sun P. Co., 38 Hun, 474; 109 N. Y. 611; Bergman v. Jones. 94 id. 52; Carpenter v.

Hammond, 1 N. Y. State Rep'r, 551; People v. Isaacs, 1 N. Y. Cr. 148; Hayes v. Ball, 72 N. Y. 420; People v. Parr, 42 Hun, 313; People v. Seaman, 6 N. Y. State Rep'r, 765; People v. Stark, 59 Hun, 54; 35 N. Y. State Rep'r, 152; People v. Clegg, 32 id. 701; Clark v. Anderson, 33 id. 866.

§ 243. Libel a misdemeanor.-A person who publishes a libel, is guilty of a misdemeanor.

People v. Stark, 59 Hun, 58; 35 N. Y. State Rep'r, 155.

§ 244. Malice presumed. How justified or excused. -A publi. cation having the tendency or effect, mentioned in section 242, is to be deemed malicious, if no justification or 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.

Art. 1, § 8, N. Y. Const. Rumors, no justification. Powers v. Skinner, 1 Wend. 451. That article was copied no defense. Hotchkiss v. Oliphant, 2 Hill, 510. Nor that author's name was given. Dole v. Lyon, 10 Johns. 447. Truth must be established. Rice v. Withers, 9 Wend. 138. Truth goes to the intent. People v. Tracy, 2 Wh. Cr. C. 358. Justifiable motives. Baldwin's case, 3 C. H. Rec. 61. See Root v. King, 7 Cow. 613; S. C., 4 Wend. 114; Washburne v. Cook, 3 Den. 110; Fry v. Bennett, 28 N. Y. 324. See Hamilton v. Eno, 81 N. Y. 122; Brooks v. Harrison, 91 id. 89; Byam v. Collins, 111 id. 150; Hunt v. Bennett, 19 id. 176; Snyder v. Andrews, 6 Barb. 43; Daly v. Byrne, 1 Abb. N. C. 150; Root v. King, 7 Cow. 613; Cooper v. Barber, 24 Wend. 105; Fidler v. Delevan, 20 id. 57; Stilwell v. Barter, 19 id. 487; Bartholomey v. People, 2 Hill, 248.

§ 245. Publication defined. To sustain a charge of publishing a libel, it is not necessary that the matter complained of should have been seen by another. It is enough that the defendant knowingly displayed it, or parted with its immediate custody, under circumstances which exposed it to be seen or understood by another person than himself.

Lyle v. Classon, 1 Cai. 581; Van Cleef v. Lawrence, 2 C. H. Rec. 41; Trumbull v. Gibbons, 3 id. 97; Snyder v. Andrews, 6 Barb. 43; Lewis v. Few, 5 Johns. 1; Southwick v. Stevens, 10 id. 443; Giles v. State, 6 Ga. 76; Prescott v. Tousey, 50 Supr. 12; Warnock v. Mitchell, 43 Fed. Rep'r, 428; Sesler v. Montgomery, 78 Cal. 486; Schenck v. Schenck. 20 N. J. L. 208; Wood v. Winans, 47 Hun, 362; rev'd on other grounds, 122 Ν. Υ. 445.

§ 246. Liability of editors and others. - Every editor, or pro prietor of a book, newspaper or serial, and every manager of a partnership or incorporated association, by which a book, newspaper or serial is issued, is chargeable with the publication of any matter contained in such book, newspaper or serial. But in every prosecution for libel the defendant may show in his defense that the matter complained of was published without his knowledge or fault and against his wishes, by another who had no authority from him to make the publication and whose act was disavowed by him so soon as known.

Andres v. Wells, 7 Johns. 260; Huff v. Bennett, 4 Sandf. 120; Fry v. Bennett, 28 Ν. Υ. 324; Com. v. Kneeland, Thach. Cr. C. 846; Rex v. Gatch, 1 Moo. & M. 433; Shelley v. Sun. P. Ass'n, 48 Hun, 474; 109 N. Y. 611 Ropke v. Brooklyn Daily Eagle, 9 N. Y. State Rep'r, 709; Hunt v. Bennett, 19 N. Y. 175; Purdy v. Rochester P. Co., 96 N. Y. 372; Sunderlin v. Bradstreet, 46 id. 188; Press Co. v. Stewart, 119 Penn. St. 584; Bruce v. Reed, 104 id. 408.

a

§ 247. Publishing a true report of public official proceedings.A prosecution for libel cannot be maintained against a reporter, editor, publisher, or proprietor of newspaper, for the pub publication therein, of a fair and true report of any judicial, legislative or other public and official proceeding, or of any statement, speech, argument or debate in the course of the same, without proving actual malice in making the report.

See § 143, supra, 7; supra. Thomas v. Croswell, 7 Johns. 264; Wilcox v. Bennett, 1 U. S. Law Mag. 131; Steele v. Southwick, 9 Johns. 214; Ackerman v. Jones, 5 J. & S. 42; Edsall v. Brooks, 2 Rob. 29; Sanford v. Bennett, 24 N. Y. 20; McCabe v. Cauldwell, 18 Abb. Pr. 377; Stanley v. Webb, 4 Sandf. 221.

§ 248. Qualification of last section. - The last section does not apply to a libel contained in the heading of the report, or in any other matter added by any other person concerned in the publication; or in the report of any thing said or done at the time and place of the public and official proceeding, which was not a part thereof. Stanley v. Webb, 4 Sandf. 221.

§ 249. Indictment for libel in newspaper.- An indictment for a libel, contained in a newspaper published within this state, against a resident thereof, may be found either in the county where the paper was published, or in the county where the person libeled resided when the offense was committed. In the latter case the defendant is entitled to an order of the Supreme Court, directing the indictment against him to be tried in the county in which the paper was printed and published, upon compliance with the following conditions:

1. He must apply for the order within thirty days after being com. mitted upon, or giving bail to answer, the indictment;

2. He must execute a bond to the complainant, with two sufficient sureties, approved by the judge hearing his application, in a penal sum fixed by the judge, not less than two hundred and fifty nor more than one thousand dollars, conditioned for the payment, in case the defendant is convicted, of all the complainant's reasonable expenses in going to and from his place of residence and the place of trial, and in attendance upon the trial;

3. He must, within ten days after the granting of the order, file the order and deposit the bond with the clerk of the county in which the indictment is pending.

Code Cr. Proc., § 138.

§ 250. Libel against non-resident. - An indictment for a libel published against a person not a resident of this state, must be found and tried in the county, where the paper containing the libel purports upon its face to be published; or, if no county is indicated upon the face of the paper, in any county where the paper was circulated.

Code Cr. Proc., § 138; Trumbull v. Gibbons, 3 C. H. Rec. 397.

§ 251. Punishment restricted. - A person cannot be indicted or tried for the publication of the same libel, against the same person, in more than one county.

Code Cr. Proc., § 138.

§ 252. Power of court, place of trial. - Nothing contained in this chapter shall be construed to abridge, or in any manner affect, the power of a competent court, to change the place of trial of an indictment for libel, in the same manner as may lawfully be done, in respect to any other indictment.

§ 253. Privileged communications. A communication made to a person entitled to, or interested in, the communication, by one who was also interested in or entitled to make it, or who stood in such a relation to the former as to afford a reasonable ground for supposing his motive innocent, is presumed not to be malicious, and is called a privileged communication.

When privileged. Legislative or judicial proceedings. Kelly v. Taintor, 48 How. Pr. 270; Thorn v. Blanchard, 5 Johns. 508; Vandezee v. McGregor, 12 Wend. 545; Cook v. Hill, 3 Sandf. 341. To bishop, or priest. O'Donaghue v. McGovern, 23 Wend. 26. Secret society. Streety v. Wood, 15 Barb 105. Investigating committee of college. Van Wyck v. Aspinwall, 17 N. Y. 190. To fire marshal. Newfield v. Copperman, 17 How. Pr. 87. Literary criticism. Reade v. Swertzer, 8 Abb. Pr. (N.S.) 9n. Agent. Lewis v. Chapman, 16 N. Y. 369. Advice by private letter. Washburn v. Cooke, 3 Den. 110. Pleading. Garr v. Selden, 4 N. Y. 91. Affidavit on motion Suydam v. Moffatt, 1 Sandf. 459; Warner v. Paine, 2 id. 195. Objections filed by counsel. Marsh v. Ellsworth, 50 N. Y. 309. Between parties interested in prosecution. Klinck v. Colby, 46 N. Y. 427. Certificate of insanity. Perkins v. Mitchell, 31 Barb. 461. What not privileged. Address signed by president of public meeting of electors. Lewis v. Few, 5 Johns. 1. Criticism of operatic management. Fry v. Bennett, 28 N. Y. 324. Affidavit before governor, who has no jurisdiction. Hosmer v. Loveland, 19 Barb. 111. Mercantile agencies, to customers generally. Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 id. 188. Scandalous pleading. Gilbert v. People, 1 Den. 41. Proceedings at execution. Sandford v. Bennett, 24 N. Y. 20. Accusing public officer. Hamilton v. Eno, 81 id. 116. See Eastwood v. Holmes, 1 Fost. & F. 347; Turnbull v. Bird, 2 id. 524. See 15 Law Mag. (N. S.) 216, 241; 1 Cr., M. & W. 193 See Byam v. Collins, 111 N. Y. 150; Van Wyck v. Aspinwali, 17 id. 190; Hunt v. Bennett, 19 id. 173; Halstead v. Nelson, 24 Hun, 395; Briggs v. Garrett, 111 Penn. St. 404; Root v. King, 7 Cow. 613; 4 Wend. 113; Edsall v. Brooks, 17 Abb. 221; Ackerman v. Jones, 5 J. & Sp. 42; McCabe v. Cauldwell, 18 Abb. 377; Stanley v. Webb, 4 Sandf. 21; Wood v. Wiman, 122 N. Y. 445, rev'g 47 Hun, 364.

§ 254. Threatening to publish libel.-A person who threatens another with the publication of a libel, concerning the latter or concerning any parent, husband, wife, child or other member of the family of the latter, and a person who offers to prevent the publication of a libel upon another person upon condition of the payment of, or with intent to extort, money or other valuable consideration from any person, is guilty of a misdemeanor.

See §§ 553, 559, post.

§ 254a. Furnishing libelous information. - Any person who willfully states, delivers or transmits by any means whatever to any manager, editor, publisher, reporter or other employe of a publisher of any newspaper, magazine, publication, periodical or serial any statement concerning any person or corporation which, if published therein, would be a libel, is guilty of a misdemeanor. [AMD. BY CH. 626 of 1894. To take effect September 1, 1894.]

TITLE X.

Of Crimes Against the Person and Against Public Decency and

Good Morals.

CHAP. I. Crimes against religious liberty and conscience.

II. Rape, abuction, carnal abuse of children, and seduction.

III. Abandonment and neglect of children.

IV. Abortions and concealing death of infant.

V. Bigamy, incest and the crime against nature.

VI. Violating sepulture and the remains of the dead.

VII. Indecent exposures, obscene exhibitions, books and prints, and

disorderly houses.

VIII. Lotteries.

IX. Gaming.

X. Pawnbrokers.

CHAPTER I.

OF CRIMES AGAINST RELIGIOUS LIBERTY AND CONSCIENCE.

SEC. 255. Profane swearing defined.

256. Punishment of profane swearing.

257. Summary conviction for profane swearing.

258. Penalties, how collected.

259. The Sabbath.

260. Sabbath breaking.

261. Day defined.

262. Acts forbidden.

263. Servile Jabor.

264. Persons observing another day as a Sabbath.

265. Public sports.

266. Trades, manufactures, and mechanical employments

267. Public traffic.

268. Serving process.

269. Punishment of Sabbath breaking.

270. Forfeiture of commodities exposed for sale.

271. Remedy for maliciously serving process.

272. Compelling adoption of a form of belief.

273. Preventing performance of religious act.

274. Disturbing religious meetings.

275. Disturbing religious meetings; definition of the offense.

276. Processions and parades.

277. Theatrical and other performances.

§§ 255-258. [Repealed by ch. 384 of 1882.]

§ 259. The Sabbath. - The first day of the week being by general consent set apart for rest and religious uses, the law prohibits the doing on that day of certain acts hereinafter specified, which are serious interruptions of the repose and religious liberty of the community.

People v. Dennin, 35 Hun, 327; Dinsmore v. N. Y. Police, 12 Abb. N. C. 436; Lindenmuller v. People, 33 Barb. 548. See note to Swann v. Swann, 24 Am. L. Reg. (N.S) 378, 394, and 18 Am. L. Rev. 778, 795; Neuendorff v. Duryea, 69 N.Y. 577; Smith v. Wilcox, 24 id. 353; People v. Ball, 42 Barb. 324; People v. Hoym, 20 How. 76; Andrews v. Bible Society, 4 Sandf. 156; People v. Ruggles, 8 Johns. 210; McPherson v. Chebause, 114 Ill. 46; Com. v. Has, 122 Mass. 40; Matter of Burke, 59 Cal. 6; Vidal v. Girard's Ex'rs, 2 How. (U. S.) 127; In re Erbe, 13 Misc.

404.

$260. Sabbath breaking. - A violation of the foregoing prohibition is Sabbath breaking.

Corporation may be indicted for. State v. Balt. & O. R., 22 Alb. L. J. 38. See Anonymous, 12 Abb. N. C. 457.