Opinion
December 30, 1909.
Clarence J. Shearn, for the appellant.
Robert S. Johnstone, for the respondent.
The defendant, a domestic corporation printing and publishing a daily newspaper, appeals from a judgment of conviction of the offense of criminal libel. Of the libelous character of the article complained of and its publication by defendant there can be no question. The defendant complains that its challenge to one of the jurors was improperly overruled whereby it was compelled to resort to a peremptory challenge. The chief defect charged against the juror appears to be that he was too intelligent and conscientious. Notwithstanding this, he repeatedly said that he did not think that it would take any evidence to overcome any prejudice he might have against the newspaper published by defendant; that he did not think he would be influenced thereby, and that he believed that he could render a verdict upon the evidence alone uninfluenced by any feeling. This was sufficient to qualify him as a juror, and the challenge was properly overruled. "It is sufficient under the statute now in force if the juror believes that his opinion will not influence his verdict, etc., and it is not essential that he should be positive on the subject." ( People v. Hampartjoomian, 196 N.Y. 77.)
The defendant also criticizes a sentence in the charge, which was possibly erroneous or superfluous, because there was no evidence in the case to which it was applicable. But it was distinctly more favorable to the defendant than it was entitled to, and, therefore, furnishes no ground for reversal.
The defendant's chief contention, and the only one requiring extended consideration, is that being a corporation, and having neither soul, conscience, mind nor feeling, it is incapable of entertaining a mischievous and malicious intent, which is an essential element in criminal libel.
A criminal libel is defined by the Penal Code (under which the defendant was indicted and tried) as a "malicious publication" (§ 242). Section 244 of the same Code provides that "A publication having the tendency or effect mentioned in section 242 is to be deemed malicious if no justification or excuse therefor is shown," and section 718, subdivision 3, provides that "Each of the terms `malice' and `maliciously' imports an evil intent, or wish, or design to vex, annoy or injure another person."
The Court of Appeals has very recently pointed out the development and evolution of the law respecting the punishment of corporations for crimes involving the element of intent. ( People v. Rochester R. L. Co., 195 N.Y. 102.) At one time it was generally considered that a corporation was incapable of committing a crime. By slow degrees, and following upon the extension of the practice of organizing corporations for the purpose of avoiding the penalties of illegal acts, the courts have reached a different conclusion until the present rule has come to be recognized as that enunciated by Mr. Bishop in his New Criminal Law, section 417, as follows: "But within the sphere of its corporate capacity, and to an undefined extent beyond, whenever it assumes to act as a corporation it has the same capabilities of criminal intent and of act — in other words, of crime — as an individual man sustaining to the thing the like relations. * * * Some have stumbled on the seeming impossibility of the artificial and soulless being, called a corporation, having an evil mind or criminal intent. * * * But the author explained in another work that since a corporation acts by its officers and agents their purposes, motives and intent are just as much those of the corporation as are the things done."
It was recently said by the Supreme Court of the United States: "It is true that there are some crimes, which in their nature cannot be committed by corporations. But there is a large class of offenses * * * wherein the crime consists in purposely doing the things prohibited by statute. In that class of crimes we see no good reason why corporations may not be held responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred upon them." ( New York Central R.R. v. United States, 212 U.S. 481.) Nothing is more common than the rendition of verdicts for punitive damages in civil actions for libel, which implies a publication inspired by actual malice. It is true that such malice is often inferred from gross carelessness or other circumstances, but the inference must be that actual malice existed. Hence such verdicts are to be sustained only upon the presumption that the offending corporation was capable of entertaining and being charged with actual malice. So, also, the Supreme Court of Massachusetts in holding that a corporation might be held guilty of a criminal contempt, said: "We think that a corporation may be liable criminally for certain offenses of which a specific intent may be a necessary element. There is no more difficulty in imputing to a corporation a specific intent in criminal proceedings than in civil." ( Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 297.) To the same effect is United States v. MacAndrews Forbes Co. (149 Fed. Rep. 823). We find no difficulty, therefore, in holding that a corporation may be indicted for and convicted of the crime of criminal libel, the evil intent of its agents who write and print the libel being attributable to it.
The judgment of conviction is affirmed.
PATTERSON, P.J., INGRAHAM, LAUGHLIN and CLARKE, JJ., concurred.
Judgment affirmed.