#### People *ex rel*Oppenhiem, Resp’t, *v.*John Parr, Appl’t.

*(Supreme Court, General Term, Third Department,*

*Filed November,*1886).

1. Libel — Expert evidence — Not a case por.

In a prosecution for libel, witnesses were called for the people, who were asked whether, upon reading the article in question, they recognized any particular individual; and further, who was the person recognized, as referred to by the article. Both of these questions were duly objected to. *Held,*that the evidence was improper, the questions calling only for the opinion of the witnesses, and that this was not a case for expert evidence.

2. Court op Special Sessions op Albany — Jurisdiction — Code Crim. Pro. § 68.

The Court of Special Sessions of Albany has jurisdiction, among other things, of “ All misdemeanors not being infamous crimes, committed within the city.” Code Crim. Pro., § 68.

3. Infamous crimes — Interpretation op language op Code Crim. Pro., §68.

*Held,*that the words “infamous crimes,” in Code Crim. Pro., § 68, must apply to such crimes as were infamous at common law.

4. Same — What constitutes an infamous crime.

*Held,*that the better opinion is that it is the nature of the crime, and not the punishment, which determines whether it is an infamous crime, and •that an infamous crime is an offence implying such a dereliction of moral principle as carries with it a conviction of a total disregard to the obligation of an oath.

5. Libel is not an infamous crime.

*Held,*that publicity is the essence of the wrong of libel, that it does not necessarily involve deception or dishonesty, and is not in its nature an infamous crime.

*Hugh Reilly,*for resp’t; *Thomas R.*Qonnor, for appl’t.

Learned, J.

This was a prosecution for an alleged libel upon Leo Oppenbeim. His name was not mentioned in the libel, but it was claimed by the People that he was intended, and that he was pointed out by 'the words, “ The Pearl Street tailor,” and by the name “ Leo.”

On the trial a witness was asked on behalf of the People, “ When you read this article did you recognize its application to any particular individual? ” He answered “ I did.”

Then he was asked, “ Who was the person that you recognized that this article referred too?” And he answered “Leo Oppenheim.”

These questions were duly objected to and exception taken. Similar questions were put to two other witnesses; objections made, and exceptions taken.

This evidence was improper.

*71It was for the People to show facts from which the jury might infer that Oppenheim was the person intended by defendant. The testimony of witnesses that they recognized Oppenheim as referred to, was only the statement of their opinion, and this matter was not one for experts.

Their opinion must haye been based upon facts known to them. They should have testified only to such facts.

If this kind of testimony were proper, then the defendant could have called witnesses to testify that they did *not*recognize Oppenheim as the person referred to, but such testimony would be plainly improper.

This principle is distinctly decided in *Van Vetchen*v. Hopkins, 5 John., 211; *Gibson*v. Williamson, 4 Wend., 320; *Maynard*v. Beardsley, 7 Wend., 561, in the Ct. of Errors; *Weed*v. Bibbins, 32 Barb., 315; and by implication in *Wright*v. *Page,*36 Barb., 441.

Two cases were cited by the People as sustaining the Court below; viz. *People*v. Croswell, 3 John., Cases 340, and *Genet*v. Mitchell, 7 John. 120. In the former no question or decision was made upon this point. The whole discussion is upon the right of a jury to determine the whole issue, and on the right of defendant to show the truth of the statement alleged to be a libel.

In the other case the court recognize *Van Vetchten*v. *Hopkins*as sound law. The testimony given by the witness had not been objected to, and was quite immaterial.

It is said by the counsel for the People that the Judgment should be reversed because there is evidence that defendant admitted to a witness that Oppenheim was intended, but we cannot say that the jury would have believed the evidence as to this admission, if it had not been fortified by the illegal evidence of the opinions of witnesses.

We are referred to the language of the court in *Hayes*v. Ball, 72 N. Y., 420, as supporting the position of the People. The question now under consideration was not involved in that case. It is very possible that in the case of verbal slander, if all the persons who heard the alleged slander testify that they understood the words in a sense entirely harmless, this may be a good defense. Because in that case the defendant has not conveyed to the mind of any person a charge or disgraceful statement in respect to the plaintiff.

But the present is a very different case. Here is a libellous publication. The attempt is not to show that it was understood by *all readers*in a harmless sense. But the attempt is to show that it is aimed at a particular person by the opinion of several who read it. It is unquestionably proper and important to show that fact. But it must be shown by circumstances surrounding the parties. The circumstances which induced' the *72belief in the minds of tbe witnesess that Oppenheim was the man intended would have perhaps produced the same belief in the minds of the jury. At any rate, the defendant was entitled to the judgment of the jury on that point.

The question is raised as to the jurisdiction of the Court of Special Sessions of Albany. It has jurisdiction, among other tilings, of “ all misdemeanors, not being infamous crimes, committed within the city.” Section 68 Code Crim. Pro.

The defendant claims that the publication of a libel is an infamous crime.

The repeal by Chapter 593, Laws of 1886, of section 31, title 7, chapter 1, part 4, R. S. has left us to the common law to determine what are infamous crimes. It is quite unfortunate that so important an exception should be expressed in words which have always been somewhat vague in their meaning.

The question what crimes were infamous used to be important principally because a conviction for any of such crimes excluded the convicted person from being a witness. That rule is abrogated. Penal Code 714; Code Civ. Pro. 832. Still the words “infamous crimes ” in Section 68 above cited must apply to such crimes as were infamous at common law.

Blackstone mentions, as making one infamous, “ treason, felony, perjury, or conspiracy, or if for some infamous offence he hath received judgment of the pillory, tumbrel or the like, or to be branded, whipt or stigmatized, or hath been attainted of false verdict, *prcemunire*or forgery.” 3 Bl. Com., 370, 364.

If the punishment inflicted were to determine the question of infamy, then the publication of a libel might have been an infamous crime. Tutchin’s Case, 14 State Trials, 1095.

But'the better opinion is, that it is the nature of the crime, and not the punishment, which determines the question, and that an infamous crime is an offence “ implying such a dereliction of moral principle as carries with it a conviction of a total disregard to the obligation'of an oath.” Per Sir.Wm. Scott, quoted in 1 Green. Ev., 373. Abbott’s Law Dict., title ‘ Infamous crimes.’ ”

In that section Greenleaf gives as the ennumeration of infamous crimes: treason, felony and the *crimen falsi.*The publication of a libel certainly is not within the first or the second, nor is it within the third, the *crimen falsi;*which implies some fraud or deceit, and which of itself must indicate a bad and immoral character.

Now, on the contrary, the publication of a libel, while it may sometimes be done with a very bad intent, does not *necessarily*imply disgraceful or immoral motives. It is not necessary to refer to the many well known convictions in England of men influenced by patriotic motives, which prove this assertion. Certainly the crime is not one which involves necessarily de*73ception or dishonesty. On the contrary, its *publicity*is of the essence of the wrong.

We do not think, therefore, that the publication of a libel is, in its nature, an infamous crime; though it may sometimes show a malevolent or a contemptible spirit.

Judgment and conviction reversed and new trial granted.

Bockes and Landon, J.J., concur.