There is certainly nothing in the character of the offence of which the defendant has been found guilty, that commends this case to especial favor. The tone of the public press and of the public conversation might lead a stranger to our institutions to suppose that we had no law against slander. Such an opinion would be a mistaken one. The slanderer is legally a criminal; and though not subject to the punishment said to have been prescribed by a law of the ancient Lydians, by which the publishers of slander were to be let blood in the tongue, and the listeners in the ear, still, a slanderer may, when duly convicted, be made to suffer severe penalties.
The motion before us suggests various grounds on which it is claimed that the accused has not been duly convicted. There are but two questions which have occasioned us any doubts: that of variance, and the instruction given by the court as to the use the jury might make of other libels, which were received in evidence, besides the one which the defend*503ant was prosecuted for having published. As tbe view we take of this latter question is decisive of'this case, we shall say nothing on the subject of variance. The newspaper articles, in addition to the one on which the prosecution was founded, were offered in evidence by the state solely for the purpose of proving malice. The defendant objected to their admission, but the objection was overruled, and correctly. They were clearly admissible to prove malice. Thus far there is no difficulty. The court, however, instructed the jury that “ the articles referred to show the animus of the defendant, and in the opinion of the court the animus bears directly, with more or less force, upon the question of fact, whether the defendant caused the publication of the article, in this, that a person in the state of mind indicated by these articles-would be more likely to publish, or cause the publication of, the article in question, than one who was friendly to Mr. Parker. And in weighing the evidence, it seems to me that it is legitimate and proper for you to keep this fact in mind.” We cannot give our assent to this doctrine. It seems to us in conflict "frith various sound and well established principles. Admitting these newspaper articles for the purpose of proving malice, cannot make them, after such admission, any legitimate evidence as to the fact of publishing the libel in question. That must be proved, satisfactorily, from other sources, and the responsibility of it fixed on the defendant; otherwise, the question of malice is quite unimportant. To allow the jury to infer the act of publishing the libel from other articles which show its malicious intent, tends pretty directly to the proposition, which no one would sustain, that a party may be found guilty of one crime by showing that he committed another.
A new trial is advised.
In this opinion Pare, J., concurred. Seymour, J.,was inclined to the opinion that the exclusion of evidence of collateral matter, as here of the publication of other libels than the one charged, was on the ground of *504policy rather than of irrelevancy, because it would raise collateral issues and might render a trial interminable ; but that, where such collateral matter was admissible for the purpose of showing malice, as it clearly was in the present case, it could then be properly .used as evidence of the publication of the libel charged, precisely as threats would be pertinent and admissible for the purpose of proving both ari act charged and the malice of the act. If admissible at. all, the evidence could of course be met by opposing evidence, thus raising a collateral issue, and producing the particular inconvenience sought to be avoided by the general rule; and that inconvenience having been produced, there would seem to be no reason why the evidence should not have the full effect which it would be entitled to, and which it was prevented from' having only by the policy which deemed its exclusion necessary on grounds of convenience. i>ut the question arising as it does in a criminal prosecution he was not inclined to enter a formal dissent from the opinion of his brethren.
CaRpknter, J., having tried the case in the court below, did not sit.