State v. Verry

[419] The opinion of the court was delivered by Johnston, J.: 2. Libel* jury— lay ami fact. The appellant contends that the court erred in its charge to the jury, and also in refusing to permit his counsel to address the jury upon the questions of law involved in the case, unless the argument coincided strictly with the law as stated by the court in its instructions. The rules governing the trial for criminal libel differ materially in some respects from those applicable to other prosecutions. In the trial of an offense other than libel, the jury are the exclusive judges of the facts; but not so with the questions of law that are involved. In those cases it is the duty of the court to instruct the jury and decide for them all questions of law that properly arise in the case; and it is incumbent upon the jury to apply the law so given to the facts of the case, and conform their verdict and decision to the instructions. For some reason the legislature deemed it wise to make an exception in prosecutions for libel, and in §275 of the crimes act it was provided that “in all indictments or prosecutions for libel, the jury, after having received the direction of the court, shall have the right to determine at their discretion, the law and the fact.” In some of the states the power of the legislature to confer this authority upon the jury is denied, but neither the validity of this provision nor the right of the jury thereunder to determine the law and the fact is here questioned. Indeed, the court submitted the whole issue to the jury, and directed them that they were at liberty to determine the law as well as the fact. But after submitting the whole issue, the court refused to allow the defendant’s counsel to present or argue to the jury a contrary view of the law from that taken and stated by the court in its instructions. This was error. It being conceded that the jury had a right to determine ^ jaw ^íe case as well as the fact, the right of the defendant by himself or his counsel to fairly and fully argue to the jury his theory and view of the law ruling the case must also be conceded. The argument is an important branch of the trial, and is intended to enlighten the jury and [420] aid them in determining all questions submitted to them. The defendant has a right to make a full defense before the jury, and his counsel have a right to discuss every question, whether of law or of fact, that the jury have a right to decide. The jury being at liberty to decide the law in accordance with or contrary to the opinion of the court, the same freedom and scope must necessarily be given to the defendant’s counsel in argument. The argument of counsel is as much a part of the trial as the hearing .of the evidence or the instructions of the court. It is a substantial and constitutional right, which cannot be taken away. (Bill of Bights, § 10.) Of course the court is not to abdicate its power and duty of instructing the jury upon the law of the case. The charge should be as full and complete as in cases where the jury are to implicitly take and follow the law laid down by the court. By reason of the learning and experience of the judge who presides, as well as the authority with which he is invested, the jury will doubtless heed and highly regard his opinion, as they should do, and will incline to adopt it rather than a contrary view presented by counsel; but the instructions which he gives are only advisory, and the jury are not in duty bound to accept and follow his views; and hence the defendant by himself or counsel has a right to present and press upon the jury views and interpretations of the law inconsistent with those stated by the court. The argument must of course be confined to the issues of the case, and must be presented in a respectful manner; and the court may also restrict the time to be occupied in argument within reasonable bounds, but it is error to restrict the argument of the defendant to the theory of law presented by the court in its instructions. (Lynch v. The State, 9 Ind. 541; White v. The People, 90 Ill. 118; Commonwealth v. Porter, 10 Met. [Mass.] 263.) The importance of the right denied is well demonstrated in this case. Over the objection of the defendant the court directed the jury that if they fouud that the defendant published the alleged libel, then unless they found that the matter charged as libelous was true and was published with good motives and [421] for justifiable ends, they must find the defendant guilty. The objection is in making the publication of the alleged libel with good motives essential to the justification. In giving this instruction the court but followed the language of the statute. (Crimes Act, §272.) , , . , vnfiaprovn 31 n' This section, however, is broader than the provisions of the constitution, and so far as it differs it cannot be upheld. In §11 of the bill of rights it is provided that— “ In all civil or criminal cases for libel the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.” The legislature had no power to place upon the defendant, in making out a justification, the additional burden of showing that the publication was made with good motives. When he has given the truth in evidence, and has made it appear that the alleged libelous matter was published for justifiable-ends, he is entitled to an acquittal. So far, then, as the statute differs from the constitution, it must be held invalid, and the instruction of the court making good motives in the publication a prerequisite to a justification must be held erroneous. The defendant not only asked the court to give the law of justification in accordance with the provisions of the constitution, but his counsel proposed to argue to the jury that good motives in making the publication were not essential to an acquittal, and this the court refused. [422] „ , 3. Evidence, not cSargeoflaroeny' [421] We have examined the other objections, and find none of them to be well taken. We regard the information to be sufficient. The request of the defendant for an instruction that a charge of theft and robbery would be sustained by proof that the prosecuting witness and another had swindled the defendant out of the sums of money named, by deceit and fraud, was properly refused. It is not necessary to the acquittal of the defendant that the truth of the charge should be proved in absolutely the same language as laid in the alleged libelous article, but, as the defendant claims, it will be sufficient if the charge as made be proved to be substantially [422] true. But evidence that one had obtained money # ^ ^ from another by deceit and fraud is not substantial proof of a charge of larceny or robbery. There are no other exceptions which deserve attention. But for the errors referred to, the judgment of the district court will be reversed, and the cause remanded for a new trial. All the Justices concurring.