State v. Currie , 97 N.J.L. 577 ( 1922 )

Per Curiam.

The defendant was indicted in the Union Oyer and Terminer for publishing a criminal libel. He was convicted in the Quarter Sessions, to which the cause was referred for trial, and brought error to tire Supreme Court, where the judgment was affijrmed. He now brings error here. We are of opinion that the judgment of the Supreme Court should be affirmed and are satisfied with the treatment of the case in its per curiam, with the exception of the following observations. The opinion states:

“The first assignment urged in behalf of the ¡ilaintiff in error is that the opening words of the charge of the trial court were prejudicial to the defendant. The court made the following statement: Ut is the duty of the court to explain to you the law of the case, and it then becomes your duty to take the case and pass upon the questions of fact, including the ultimate fact of the guilt or innocence of the defendant. I say that you may then take the case and pass upon the facts. I ought to change that, because the constitution of this state in a libel case makes you the judge of the law as well as the facts. But first let me explain the general principles of law that surround this issue.’ ”

The opinion of the Supreme Court then proceeds:

“To hold that this is prejudicial error would be to hold that a judge who notices that he has made a mistake in his charge cannot correct that mistake by a subsequent statement. To hold as the counsel for the plaintiff in error contends would he to hold that under no circumstances can a judge correct a mistake in his charge that, lie notices he has made. The mere statement of this proposition demonstrates its unsoundncss.”

Mow, there does not appear in these excerpts from the charge that there is any mistake that was corrected. A careful reading of the charge discloses that the trial judge did not state that he had committed error and corrected it. This proposition is rather one of counsel’s conception.

The constitutional provision that in trials for criminal libel the jury shall have the right to determine the law and the, fact does not deprive the court of charging the jury on the law of the case. Drake v. State, 53 N. J. L. 23, 30. And Chief Justice Beasley, in State v. Jay, 34 Id. 368, said that it was .questionable whether in prosecutions for libel the jury can, under our constitution, lawfully disregard an instruction of the judge as to the law of the ease.

There was no statement in the charge that the jury was obliged to take the law from the court. The judge’s statement that it was the duty of the court to explain the law of the, case to the jury was correct. His statement that it became the jury’s duly to pass upon the facts was also correct. There was more to the case, and in the next sentence the judge said, “I ought to change that because the constitution of this state in a libel case makes yon (the jury) the judge of the law as well as the facts.”

When the judge instructed the jury that it was their duty to pass upon the questions of fact, it was unnecessary for him to have charged immediately thereafter that the constitution made the jury the judge of the law as well as the fact. He could with propriety have charged with reference to the law in any other part of his deliverance, and in fact he did that thereafter, not once, hut twice. He read the constitutional provision, which concludes, “and the jurjr shall have the right to determine the law and the fact,” and afterward, when charging that where the defence of the truth uttered with good motives and for justifiable ends, fails, he said; “I mean by that not to take from you the right given the jury to pass upon the law and the facts, but merely to assist you in explaining what the law of criminal libel is.”

We think that the trial judge was at least inaccurate in his statement, wherein, after charging the jury that they were to pass upon the facts, he said he ought to change that, and then stated that the constitution made them judges of the law as well as tire facts; that is, he was inaccurate in saying that he ought to change the charge as to the jury’s right to determine the facts. Nor did he change it by retraction, limitation or in any other way; but added to, without changing, it. What he did was to add the assertion that the jury were the judges of the law as well as the facts, which was correct. The Supreme Court went further and treated the matter as though the judge had made a mistake and had corrected it. We find no error in that part of the charge above adverted to, and think the deliverance of the trial judge as to the jury’s right to pass on the law and the facts was correctly laid down.

In all other respects we are satisfied with the opinion of the Supreme Court, and the judgment will, therefore, be affirmed.

For affirmance — Ti-ie Chancellor, Swayze, Trenchard, Minturn, Black, White, Hepeenheimer, Williams, Ackerson, Yan Buskirk, JJ. 10.

For reversal — Parker, Gardner, JJ. 2.