I should concur in the opinion of the presiding justice were it not that b’oth parties agreed upon the trial that whether or not this book was a lewd and lascivious one was a question of law to be determined by the court and not a question of fact to be settled by the jury. At the close of the plaintiff’s case the counsel for defendant said: “ Mr. Beecher: As outlined in the opening, there are really two grounds of defense, both of which suggest probable cause, and the one is the conduct of the defendant by his agent and informatipn he received from the committing Magistrate, and that would not be proper now because the evidence taken of Magistrate Sims was taken as a part of our case and not a part of the plaintiff’s case, so that I will have to reserve that if necessary, until later, but on the other aspect of the case there being no dispute of fact in regard to this book, as to the sale of it by the plaintiff who was the defendant in the criminal action, we raise a question of law for the Court on that one question and around that, as a matter of law, the publication was one which was suggestive of lewdness and lasciviousness, and one which a fair-minded man could fairly and reasonably believe was lascivious and a lewd book, and it is wholly immaterial whether the plaintiff was actually guilty whether as a matter of fact a jury would say that it was *250lewd and lascivious, or a fair-minded man might fairly believe it was, then it was or would be justification for the prosecution which was instituted by this defendant, and upon that ground at this stage of the case I move to dismiss the complaint. They have not shown that the absence of probable cause as defined by the Court. The Court: I will reserve decision. It appears to me that the whole question of probable cause will be for me to determine. Mr. Beecher: Certainly, as far as the book is concerned, and when I come to show the other evidence, if there is no dispute as to that, that will be a question for you, too. The Court: I will hear the defense.”
Not ©nly was there no exception to the trial court’s passing on the character of the book as a matter of law, but the suggestion that such issue should be so disposed of came from defendant’s counsel. No request was made by defendant to have the jury pass on the book. The book had been offered in evidence by defendant as an exhibit in the case. Nothing occurred in reference to it until the address of defendant’s counsel to the jury, as follows: “ (During Mr. Beecher’s summation to the jury the following occurred): Mr. Beecher: May I state now to the jury that counsel proposed to read a brief extract from the book in question as being knowledge contained in the mind of the plaintiff, that is the complaining witness, under which he acted and as showing that he was acting under an honest belief and not from malice — and your Honor directs me not to read? The Court: Yes, not to read. Mr. Beecher: To which I take an exception. Does your Honor hold that the book cannot be submitted to the jury? The- Court: It may not be. Mr. Beecher: May I take an exception to your Honor’s ruling? The Court: Yes.”
In the first place, I think it was improper to allow the attorney to select such quotations as he desired to read, which may never have been in the mind of the complaining witness, Sumner, when he made the charge against plaintiff. The most he could have testified to under any conditions was what he honestly believed were indecent or lascivious passages, or the general character of the book, when he made the complaint. What counsel might think were indecent passages, selected months or years afterwards, was quite immaterial. In the second place, counsel for defendant had already agreed that the court should *251pass upon the character of the book as a question of law. He did not ask the court to decide the question then, nor ask that the jury be allowed to decide the character of the book. In fact the court only decided its character when charging the juiy.
I believe, therefore, that the exceptions present no reversible error, and that the judgment should be affirmed.
Page, J., concurs.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.