(dissenting). I dissent and vote to reverse the judgments of conviction and to direct a new trial.
In his summation, counsel for the defendants openly sought to address argument on the law to the jury, contending that a prosecution for criminal libel would not lie against a person making statements concerning a public official, even though the accusations did not concern official action but private behavior. On objection by the prosecutor, defendants’ counsel was prevented from arguing the law to the jury by the court, to which ruling the defendants excepted.
I think that the court’s ruling was error. Our Constitution (art. 1, § 8) and statute (Code Crim. Pro., § 418) direct that the jury in a criminal libel action shall have the right to determine “ the law and the fact. ” I read these provisions literally, for they affect the fundamental privilege of free speech, and should not be curbed or diminished, for, as has been said rightly in *368another context, bnt with relevance to the conduct of the defendants here,££ it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions ” (Bridges v. California, 314 U. S. 252, 270).
The historical setting of the jury’s unique prerogative in criminal libel emerges from ££ the struggle that long prevailed between courts and juries as to their respective rights in prosecutions for libel ” (People v. Sherlock, 166 N. Y. 180, 184). The early common law in England, shaped by the procedures of the Star Chamber, held that the jury in a criminal libel case had the duty only to determine whether the libel was published by the defendant and whether the publication and innuendoes applied to the party complaining; the court determined whether the publication was false and malicious (2 Cooley, Constitutional Limitations [8th ed.], p. 950 et seq.). Fox’s Libel Act (32 Geo. III, ch. 60) was enacted by Parliament to overcome this ruling and to augment the power of the jury so as to allow it to make determinations both of the law and the fact. The trial of John Peter Zenger in colonial times (17 Howell’s State Trials, 675) in New York sharpened the necessity for constitutional protection, for in that case the Judge indeed ruled that truth was not a defense, and Andrew Hamilton as defense counsel successfully argued to the jury that it was (note, 52 Col. L. Rev. 521, 524). In the famous case of People v. Croswell (3 Johns. Cas. 337, 369) Judge Kent observed that£ £ a libel is a compound of law and fact. To separate them is difficult and dangerous, and, without a special verdict, the jury are authorized and bound to judge from a combined consideration of both. ” Although his view did not then prevail, at least it furnished the impetus for the enactment of the statute in 1805 (L. 1805, ch. 90) which conferred on the jury the right to determine the law and the fact ££ under the direction of the court. ” .Since 1821 our Constitution has unqualifiedly commanded that the jury determines the law as well as the facts (People v. Sherlock, supra); and significantly the modifying phrase ,££ under the direction of the court ” in the 1805 statute has been discarded.
Certainly, the court may not instruct the jury that it must find a publication to be a criminal libel per se (People v. Yui Kin Chu, 273 N. Y. 191, 198). I would construe the Constitution in the same light as did Cooley, then writing at a time closer to the events which created the reason for its provisions (2 Cooley, Constitutional Limitations [8th ed.], p. 955): ££ Whatever may be the true import of Mr. Fox’s Libel Act, it would seem clear that a constitutional provision which allows the jury to determine the law, refers the questions of law to them for their rightful deci*369sion. Whenever sneh provisions exist, the jury, we think, are the judges of the law; and the argument of counsel upon it is rightfully addressed to both the court and jury. ”
Thus, the instructions of the Judge have been said to be advisory (cf. People v. Walker, 93 Cal. App. 2d 54; State v. Armstrong, 106 Mo. 395); and it has also been said that counsel may argue the law freely to the jury (State v. Whitmore, 53 Kan. 343; Ann. 67 ALR 2d 245, 277-279).
Counsel for the defendants had proposed his argument on the law to the court as a basis for a dismissal of the indictment and as a request for a charge to the jury, in accordance with counsel’s construction of the opinion of the Supreme Court in Garrison v. Louisiana (379 U. S. 64). When the court declined to grant counsel’s motion or to follow his request, that refusal did not end counsel’s constitutional right to argue his views to the jury. The argument clearly was made in good faith and the jury was entitled, if it chose, to accept its proposition as law and to acquit the defendants.1
Indeed, in Rosenblatt v. Baer (383 U. S. 75, 86), the Supreme Court has made clear that “Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees ”, then the constitutional standards must be applied in actions brought to enforce personal liability for libel, and, a fortiori, in a criminal libel prosecution. Moreover, in the same case it was said (p. 88) that “ it is for the trial judge in the first instance to determine whether the proofs show respondent to be a 1 public official ’ ” (emphasis supplied). As Mr. Justice Black stressed in his concurring opinion, the italicized words give effect to the role of the jury in a criminal libel prosecution to decide all elements of the guilt of the defendant (p. 96); that is to say, although the Trial Judge first determines the question of admissibility of evidence to go to the jury and the question whether the evidence presents a case for the decision of the jury, the ultimate question whether the defendant is a public official within the meaning of the constitutional standard must be resolved only by the jury. Equally, it seems to me, it follows that it is a matter for the jury to decide *370whether the statement said to constitute a libel bears on the qualifications of the defendant for public office.
Essentially, this was the tenor of the argument which counsel for the defendants attempted to make to the jury here and was prevented from making. Whether the argument presented questions of law or of fact or of mixed law and facts seems to me immaterial — in any event the jury was the sole arbiter of these questions under our law and the defendants’ rights were infringed when the right to make the argument was denied them.
Hence, it was error to foreclose the argument of counsel to the jury in this prosecution for criminal libel — an exception to the general rule in criminal cases (cf. Duffy v. People, 26 N. Y. 588) — and the judgments should be reversed and a new trial directed.
Hill, Rabin and Benjamin, JJ., concur with Ugiietta, Acting P. J.; Hopkins, J., dissents and votes to reverse the judgments and grant a new trial, in opinion.Judgments affirmed.
. Indeed, it should he noted that the author of the annotation concerning “ Constitutional Aspects of Libel or Slander of Public Officials ” in 95 ALR 2d 1450 considered that the principles expounded in New York Times Co. v. Sullivan (376 U. S. 254) likely apply to criminal libel (Ann. 95 ALR 2d 1451, n. 8).