The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1844-03-09
3 superior Court.

MARCH e.-De t1 Hay vs. p,ren-After the Jurors had
answered to their Aame Judge Vanderpoel delivered his
charge His Honor SAID this an action for
and publishing libel Before party can be fixed il Is
necessary to prove written by him or that he
published it. AS to the matter OF this libel there ca hs
no doubt Is the most gross and disgusting libel that
was Drought into court OF justice and for ought we
Know on an amiable and unofiending woman and the
party whoever he may be- that composed and published
H. deserves the severest animal not only of the
Jury Out VI every well regulated mind in the community
Gentlemen IN this case the defendant does not plead JUS
ticaon he pleads that he guy-that is he neither
composed or published the libel Gentlemen there
TWO species Of defence to libel, The first the plea of
not guy-tha is that he neither composed or published
IT, The second lisa plea Of Justification by which he jus
tihes himself and insists he done it good and ust6abe
motives he ID not successful last species OF de-
ience aggravaes the guilt of defendant because he
comes in aud spreads the libel the files of the court and
gives 1t greater currency This said before reat
aggravauon OF his offence for DO party ever so limo
cent, they leave with faint on their character
This is not the case here The defendant pleads not
guythat is, that he neither composed or published
TINS libel and It therefore lies the plaintiff prove
that he Is the publisher OF it, for denied that it
IN MS handwriting The only question then for YOU to
determined II, has this defendant been guilty of publishing
TINS outrageous libel on this noendng lady Mr. Cothei
the witness introduced Tor the purpose of proving
that the libel Is in the defendants handwriting This wit.
ness states that he was in the church.
that ne saw the defendant write month. This is
strong testimony and ought to put the defendant his de-
ience. The witness swears he saw him write much as
once month now this was enough to make the defen.
dant produce some testimony rebu or explain away the
paintif evidence. But gentlemen this altogether
question Tor your and is nv Intention to
throw the burden OF the verdict YOU and upon the evil
dence the verdict must be- based The legal propositions
which think proper to submit to you, to
writing, aud although may have opinion the sub.
ject you must not take that opinion into your consdera
ton nor let it into the scale either sde you must take
the defendant publish this libel for this is the material
point in the cause Gentlemen, will now lay down the
now lay it down law that the mere writing does not
amount to LIBEL nor does the finding it in the possession
Of party amount to libel but in such cases the ques
ton or the jury to decide is whether there pubca
ton or not The mere writing not publication bat
Is an item that goes far to show publication. Gentlemen
man sits down and writes libel he ought TO
that does not njure his neighbour and he ought to take
care also how it gets into circulation Again. gentlemen
II man writes libel, and that it stolen from
hlm, or otherwise surreptiously iraudulently oh.
famed from him, 1t is not publication Of it but
II he sits down, composes and writes a libel, and
cation in the eye of the law But gentlemen II he wroVe
it, he wrote IT, and that found by De Bouilon or
came into the possession Of De Bouon by fraudulent
any other unfair means, would charge theieendan
he can show that it stolen otherwise surreptious
~ obtained from him and published without his concur
renee or consent And LASTLY De Boulon any other
person who may have composed that libel and showed to
defendant and that he consulted party to its pub
cation he is guilty OF publishing su h libel Gentlemen
with those legal rules for your guidance YOU must apply
them to the evidence adduced and come to satisfactory
conclusion In this cause The letter containing the al
LEGGED bol rst made its appearance in the Court of
SONS on the trial OF De Boulon Barhelemy and another
man. in their defence this libel first promulgated to
cutor in that suit Gentlemen the defence is that De
Bouon wrote those letters that the defendant copied
neh anu het Ne boulon afterwards stole and published
them The defendants counsel strongly argues that il is
manifest that De Bouon must have been the author of
those letters because in the first place he showed
Burs In Brooklyn long before the trial in the Sessions
Court and Burts says It the same in language and
substance as the shown to him in Court aud that it
also reflected on Madame De La Have Next. that De
Bonilon alone accountable for the publication of this
libel because plaintiff the letter sent to Madame Brr.
nell before 1t was published and said it in the hand.
writing OF De Bouion, and that il from him; and
thirdly gentlemen, he contends that De Bouilon was
be original contrver writer and publisher Of this
pei nc SAD that 1t IL impossible the defendant
libel His Honor then went 70 remark the srgu.
be drawn that De Boullon made q tool Of by de.
endant but he said there is evidence Of any msun-
Outstanding at that time between the plaintiff and de-
endan and was strongly argued by his counsel that
he could have no motive for writing such libel But,
gentlemen, the plaintiffs counsel made long and nge.
NOUS argument on the letter written by the plaintiff to
the defendant on the oath December 1899. to show that
the defendant tried every motive to ruin the plaintiffs
H 1o Honor then told the jury that il they
ments Of counsel that the defendant had motive in Wr
ting this libel they should take it into their consdera-
verdict should be founded He not. however to be
understood as saying others have DONE that ia
ors never h any light from the Of
ures did receive great assistance from the arguments
counsel and he would say, that in this case he received
the greatest benefit from the light thrown the subject
by the able arguments Of the learned counsel both
sides. Gentlemen said His Honor is little extraordi
nary, that minister of the gospel would sit down to write
such lbe-a man clothed in the sacred character Of the
ministry, should recoll from such disgusting work
Yet ysu can gather from the evidence thahe only sat
down and copied this libel from motive to shield himself
from an attack from De Bouillon from any other
ter, and without any malicious intent to defame or
benefit Of it but is extraordnary, that thu. his
divine should sit down and compose this disgusting
libel Gentlemen, the defendants counsel tells you
It is impossible that the defendant could have sat down
and composed three distinct AMI separate bes at the
same time and on sheet Of paper. You will give this
argument all the consideration II deserves. On the other
O from
the nonproducton OF De Bouillon that the defendant must
he the author of the libel and asks defendants counsel
by they did not produce him. His reply that he
not bound to go into the enemies camp to make out his
and even they produced him he could not be
refuse to answer Our law will not compel witness to
crimnats himself but, gentlemen, it of those
where could hardly be expected that either parties
would resort to this witness and think his n0npro-
ducton ought not to prejudice either parties Gentlemen
great deal of extraneous matter have been pressed
your consideration in this caseofers to produce EVIL
dence have made and ruled out but whether such
offers could have been realized not, If they ad-
mtted do not know but you have to try this by
the evidence adduced and not by the evidence ruled out
and you try anyOther evidence than that produced
you foswear yourselves, and outrage the laws of your
country This is an important cause, an it regards the
morals of the country andfti to hoped you will give
all the consideration deserves Your simple duty then
to enquire whether the defendant published this libel
and let me caution you against bringing your minds
rashy to the consideration Of this subject Iyou sat
sed from the evidence that the defendant sat down cooy
and deliberately and penned this libel, to defame and
blast the character of the plaintiff with view to
himself from the consequences Of his conduct you
ought not to let the sacredness of his Office the feel
ngs Of his wife and children sepln between him and the
outraged laws ofthe country Neither should you allow
your feelings your judgment to be swayed in favor Of
plaintiff II she has net made out her however much
there may be to excite sympathy and feelings in her
iavorshe Is q stranger in strange and-a desoate wo
man. and the victim OF Of the most atrocious bes
uttered against female and well calculated to blast
her character and forever prevent her from earning her
bread His Honor continued to make some further eo
qrent remarks the sitnson Of the plaintiff and the
decacy Of her situation and concluded by submitting
the case to the jury.
The foreman of tho Jury then stood up and asked the
Jury in criminal cases. judges Of the law well
as the fact2
Mr. WnIrrNG--The law on that point is not decisive;
but the better opinion is. that they are.
SMIrH-The law Is undecided.
The CouRr, however ruled that the jury to Judge
Of the law, well AZ the fact.
Another of the Jurors then asked There any doubt
on their minds the party entitled to the benefit Of
the doubt
The CounT decided in tho Affirmative.
The Jury remained in elaboration all day, but could
not agree. They discharged at O'Clock yesterday
evening.