[1] The defendant argues that the indictment does not allege, either in the language of the statute or in any equivalent language, that the libel exposed Noyes to hatred, contempt, ridicule, or obloquy, or any fact upon which such inference may be drawn, in that it fails to state that the picture was a recognizable likeness of Noyes, that it resembles him in its features, that the explanatory article does not so explain the picture, nor refer to Noyes, and there is no allegation that the picture was published to or seen by any one who knew Noyes, or understood the picture to be a representation of him.

By section 1340 of the Penal Law libel is defined to be:

"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."

The indictment charges the defendant with the publication of a malicious libel which is stated to have consisted of a picture, a copy of which is set out in the indictment. It is not necessary to redefine libel in the indictment. It is sufficient that the indictment charges the publication of a libel, and sets forth the picture constituting the libel, and it is for the jury to say whether or not the picture is a libel within the definition, namely, whether the picture exposes Noyes to hatred, contempt, ridicule, or obloquy, or causes or tends to cause him to be shunned or avoided, or has a tendency to injure him in his business or occupation.

[2] Neither is it necessary to allege specifically that the picture was a recognizable likeness. The indictment flatly alleges that the man shown in the picture is "a representation and figure of the said Frank B. Noyes."

"Representation" is defined as:

"The act of representing to the mind or the view; the act of portraying, depicting, or exhibiting, as in imagination, in a picture, or on the stage; portrayal." Century Dict.; Cyc.

"Figure" is defined as:

"The artificial representation of a form as in sculpture, drawing, or painting, embroidery, etc.; especially the human body represented by art of any kind." Century Dict.; Cyc.

By Code of Criminal Procedure, § 282, it is provided:

"The words used in an indictment must be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning."

The allegations put in issue whether or not the picture is a portrayal and drawing of Noyes, and that means a recognizable likeness. If the pen and ink drawing is not a recognizable likeness, it is not a representation and figure, and the people would fail in their proof, and the case against the defendant would fail. This is a question for the jury to pass upon.

[3] The article printed on the same page with the picture and stated to be explanatory of it does not mention Noyes by name; but the

indictment alleges that the picture is the libel, and whether the picture, explained or unexplained, is or is not a libel of Noyes, is a question for the jury's determination.

[4] The contention that the indictment should allege that it was shown to some one who knew Noyes is sufficiently, answered by section 1343 of the Penal Law, which provides:

"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."

[5] The defendant further contends that the indictment is defective, in that it does not allege malice or criminal intent on the part of the defendant. It has been held that criminal intent is a necessary element of the crime. People ex rel. Carvalho v. Warden, 144 App. Div. 24, 128 N. Y. Supp. 837, affirmed 212 N. Y. 612, 106 N. E. 1039. In my opinion, however, the indictment sufficiently charges the commission of the crime. It alleges that the defendant

"did unlawfully and wickedly print and publish scandalous, malicious and defamatory libel."

a certain false,

The statute, after defining a libel as a malicious publication, by section 1341 provides:

"A person who publishes a libel is guilty of a misdemeanor."

The indictment charges that the defendant did publish a malicious publication and the charge is therefore made in the language of the statute, which is sufficient. People v. Welden, 111 N. Y. 569, 19 N. E. 279; Eckardt v. People, 83 N. Y. 462, 38 Am. Rep. 462; People v. Hulett, 39 N. Y. St. Rep. 646; People v. Adams, 85 App. Div. 390, 393, 83 N. Y. Supp. 481; People v. Herlihy, 66 App. Div. 534, 540, 73 N. Y. Supp. 236; People v. Seldner, 62 App. Div. 357, 360, 71 N. Y. Supp. 35; Phelps v. People, 72 N. Y. 334.

2. The defendant raises the further objection that the indictment is bad for duplicity.

[6] It is well established that an indictment may contain separate counts charging the commission of the same crime in a different manner. People v. Adler, 140 N. Y. 331, 35 N. E. 644. It is equally well established that the commission of a crime in two different manners or by different means may not properly be alleged in one count. Judge Haight in People v. Hartwell, 166 N. Y. at page 365, 59 N. E. at page 931, says:

"The provisions of section 278 of the Code of Criminal Procedure provide that the indictment must charge but one crime and in one form, except as in the next section provided. That section provides that 'the crime may be charged in separate counts to have been committed in a different manner or by different means.""

The Court of Appeals in the case last cited raises the question, without determining it, of the propriety of attacking an indictment by demurrer on the ground that it contains the unauthorized union in one count of two charges alleging the commission of the offense by two

different means. Judge Haight (166 N. Y. at page 366, 59 N. E. at page 931) says:

"It may be that demurrer will not lie to remedy these defects. Under subdivision 3 of section 323 of the Code of Criminal Procedure a demurrer may be interposed when more than one crime is charged in the indictment within the meaning of section 278 or 279.' It may be that, under the provisions of this section, one crime stated by different means in the same count is not demurrable, although prohibited by these sections."

[7] In the indictment before me there is but one count, charging one crime, namely, the publication of a libel of one Frank B. Noyes. It is not necessary to determine whether the joinder in one count of allegations charging the commission of the crime by different means is demurrable, because the count does not contain such allegations.

The indictment alleges that the defendant did publish a certain malicious libel "by then and there printing and publishing the same" in a certain magazine or periodical called "The Masses," "then and there edited, printed, and published by them, the said Max Eastman and Arthur Young." The defendant contends that these allegations are bad for duplicity, in that they charge the publication of a libel both by the means of printing and by reason of editing the periodical in which the alleged libel appeared. In my opinion, this is not a charge of the commission of the crime in more than one form in the same count. There is but one charge, namely, the publication of the libel, and the means employed is alleged to have been a cartoon in the magazine or periodical called "The Masses," and the manner in which committed is alleged to have been the printing in and delivering of that magazine. The allegation that "The Masses" was edited by the defendants does not add a different manner or means whereby it is charged that the libel was committed, and is equivalent to an allegation that the defendant, being the editor of a certain periodical or publication, did publish a malicious libel by printing and publishing the same and causing the same to be printed and published in that periodical.

The allegation that the defendant was the editor is merely a statement of the evidence, whereby the defendant's responsibility for the publication by the means and in the manner charged may be proven. The origin and application of the rule are stated in Commonwealth v. Morgan, 107 Mass. 199, at page 202, where Judge Colt says:

"When a libel is sold in a bookseller's shop, by a servant of the bookseller, in the ordinary course of his employment, or is published in a newspaper, the fact alone is sufficient evidence to charge the bookseller, or the proprietor of the newspaper, with the guilt of its publication. This evidence, by the earlier English decisions, was held not to be conclusive; but the defendant was permitted to show, in exculpation, that he was not privy, nor assenting to, nor encouraging, the publication. See 1 Lead. Crim. Cas. 145; notes to Rex v. Almon, 5 Burr. 2686. Afterwards such evidence was held conclusive, upon the ground that it was necessary to prevent the escape of the real offender behind an irresponsible party. Rex v. Gutch, Mood. & Malk. 433. Rex v. Walter, 3 Esp. 21. In both these cases the defendants offered to show that they were perfectly innocent of any share in the criminal publication, and that, although proprietors of the papers, they were living at a distance from London, the place of the publication, taking no share in the actual publication, and in one case confined by illness when the paper complained of

appeared. It was ruled by Lord Kenyon and Lord Tenterden to be no defense. But now, by a recent English statute, a defendant is permitted to prove that such publication was made without his authority, consent or knowledge, and did not arise from want of due care or caution on his part. St. 6 & 7 Vict. c. 96."

The early decisions in this state followed the rule pronounced by Lord Kenyon in Rex v. Walter, 3 Esp. N. P. Cas. 21. In Andres v. Wells, 7 Johns. 260, at page 263 (5 Am. Dec. 267), it was held that an action for libel lies against the proprietor of a gazette, though the publication was without his knowledge; Spencer, J., saying:

"It would be too much to say that any man might with impunity own and sustain a public newspaper, without any responsibility for the libel with which it might abound. The principle laid down by Lord Kenyon is salutary and essential."

See, also, Dole v. Lyon, 10 Johns. 447, 6 Am. Dec. 346; King v. Root, 4 Wend. 114, 136 (21 Am. Dec. 102).

The rule of evidence has since been modified in this state by statute similar to the English act, and is now found in section 1344 of the Penal Law, as follows:

"Every editor, or proprietor 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."

[8] 3. The objection that the indictment does not contain a plain and concise statement of the act constituting the crime without unnecessary repetition, in conformity with the requirements of sections. 275 and 276 of the Code of Criminal Procedure, is not well taken. The tests found in the authorities are:

The indictment must both charge the crime and state the act constituting it. People v. Stark, 136 N. Y. 538, 541, 32 N. E. 1046; People v. Dumar, 106 N. Y. 502, 13 N. E. 325.

The act charged as the crime must be plainly and concisely set forth, with such a degree of certainty as to apprise the defendant of the nature and character of the offense charged and of the facts which may be proved, to enable the defendant to prepare his defense, to enable the court to pronounce judgment upon a conviction according to the rights of the case, and to so identify the charge that the record of conviction or acquittal will serve as a bar to subsequent prosecution for the same offense. People v. Lammerts, 164 N. Y. 137, 144, 58 N. E. 22; People v. Helmer, 154 N. Y. 596, 600, 49 N. E. 249; People v. Dimick, 107 N. Y. 13, 29, 14 N. E. 178.

The indictment meets all of these requirements.
The demurrer is overruled.

DEVINE v. PRICE.

(Supreme Court, Appellate Term, First Department. March 29, 1915.) BILLS AND NOTES 155-NEGOTIABILITY—STIPULATIONS AFFECTING NEGO

TIABILITY.

A note which stipulates for the payment of a specified sum 90 days after date, and which recites, "This note is payable when Post Office Department accepts my building from me [maker]," is nonnegotiable because of the quoted sentence, which evinces an intent of the parties that it shall control the time of payment.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 407-410; Dec. Dig. 155.]

Guy, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Peter J. Devine against Henry E. Price. From a judgment for plaintiff in an action on a promissory note, defendant appeals. Reversed, and new trial ordered.

Argued February term, 1915, before GUY, PENDLETON, and SHEARN, JJ.

Neier & Van Derveer, of New York City, for appellant.
P. Henry Delehanty, of New York City, for respondent.

SHEARN, J. Evidence was adduced to the following effect, in substance: Edward F. Riley, payee in the instrument in suit, acting with a Mr. Hill and a Mr. Kenny, sought a builder to enter into a contract with the United States government for the erection of a post office building. Riley, plaintiff's assignor, found the defendant Price, who put in a bid for the erection of the building. Riley, plaintiff's assignor, told Price that Price would have to pay a commission of $400, $250 of which was to be paid to Hill and $75 each to Kenny and Riley. Riley procured a contract for the purchase of a piece of property at Fifth avenue and Ninetieth street, borough of Brooklyn, on which the proposed post office building was supposed to be erected. No building was erected. During the negotiations Hill and Riley asked the defendant Price for notes representing the $400 "commission," and after some discussion Price gave his note for $250 to Hill, a note for $75 to Kenny, and a note for $75 to Riley, which last note is the one in suit. At the time of the delivery of the notes, Price said:

"Remember, this is an accommodation, and you cannot bind anybody until the government has actually paid us the money."

The note delivered to Riley reads as follows: "$75.00 New York, August 10, 1913. "Ninety (90) days after date I promise to pay to the order of Edward F. Riley seventy-five dollars ($75.00), at 363 Fulton street, Jamaica, L. I. Value received. This note is payable when Post Office Department accepts my building from me.

Henry E. Price."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 152 N.Y.S.-21