Evening star. [volume] (Washington, D.C.) 1854-1972, 1872-05-04
Crane, the Investigator. Investigated.
I'D,

In the Police Court, this morning, Judge
Smell gave his decision in the suit brought by
John II. Crane against Thomas Donohe, for
alleged libel By the publication OF an affidavit
making charges OF corruption against said
Crane while he was commissioner OF improve
ments OF the fourth ward OF the city OF Washing
tor. The following is the opinion OF Judge
Smell, in full:
Z. s. RS. Thomas ronoho-Li5el.
The information in this case charges the de-
fendant, hOnohO, with making, writing. print
ing and publishing of and concerning one John
ii. Crane certain infamous libel, according to
the following 'tsH0r ana eject"
DiHTtcl # FolaD't'd, C,VHfs Of Wasiingtoa. IS:
Or tins sixteenth day Of Marc, A l. 1872 before
ne, the rrdersiCDed p-r-Gua Is came tn mas ID N
OHIO, who being duly sworn dep1ses AID saws that
durius he may orally administration of Nr. Bowen
he eagaRCd u1deF contract IN the execution 81
public work in the Fourth ward. of wtica Mr..
execution Of aid work the sa.d Crane, commission
:, from time 10 time OF snei frc m Ia IN, by exao-
It o. which all ticieI ci-s in tho execution If
said work were overlooked aud tn work apprayyd,
an' that at the mitigation and suggestion If SAID
Graz ., he cid omit several courses Of bfioN from
ne yuahtity FpttlAei I" DE tnriished and fGE
Which. u,der N" specifications, pay was al
So ut FURNISHED was div ded with sail Craue.
Aic, further, that when the deficiencies in said
he the said Crane, called upon this dep nent fur
Iish blm with further sTm Of S29, i'm der -
rc- b. ing furnished 70 g Id Crane this Dc pOnont
GomT elied to oreG mp the work AMI - gsricct the
h. he'd made. And that when the matters ana
ttiEss herein stated came under ohseTy alton, Mr..
va'i,u, means e. SO shape the evidence Of t. de-
4. Il. a. e maxi his evidence screen sJid Craze
herein stated. and that thereafter said Gran, in
every manner in his power ob-trncted The business
Subscribed and sw I'm t. before me.
CHRIS CoNs. CALLAS, NOisry Public.
This puTpCTts to be affidavit taken before
notary public. II lioClouS IN character, it =
10 rejection to the defendant that il was sworn
10 ut fore a magistrate, unless made in regular
judicial proceeding. The publication at libel
Gus tfhdaVit, which had never been offered in
evidence in any such proceeding in "a court OF
Justice, is an offence for which an action can be
maintained. King V. Townshend, cited la
TOwnShend on Libel, p tdl. 2d ed. \ bbOtt e.. j
That the affidavit is libelOus the court has no
doult, and unless the facts set forth ia it are
shown 10 be true, and published for good mo-
tives and unsuitable ends, the defendant would
be guilty OF the offence charged, upon establish
ing the fact of publication.
But this is a criminal prosecution, and in a
class OF cases where the party injured has
civil remedy the rules of law must be strictly
complied with. The criminal offence III libes
Is based upon Tie danger to the public peace
arising from permanently putting on record
matter tending to bring the injured party into
public notice, contempt and Tidtcuie." II Is
incumbent upon the government TO make out
all the elements of the crime. If wanting in
any Of these. judgment must be for the defend
ant. II the government makes a case by
proper proof of publication OF the def4matOTy
and justification must be complete, and 20 the
full length of the defamatOrv allegations.
- here Is 40 such thing as halt iuStfcatiOn.'
"A y. Y, 1Gs.l " A charge or stealing is not JUS
heo by showing the taking a mere tres
pass" " \ charge that the plantiifi is a libel
10 Is Journalist l. not - aimed by proof that
lie was convicted of libel on ono occasion
Wakely V. Cooke, EXchequeT, Sill Shepherd
V. Nj errill, IS Johns, 4I5. "A charge that
+. @, commissioner of bankruptcy. had been
Gu.l Y of wilful misconduct in Office is t
justified by showing misconduct consistent with
rectitude Of intention, riggs V. DennesiOn,
> Johns, Gas. 1851 Mere belief in the truth
Of the libellop> matter i no defence" WATSON
and wife V. Moore, Cush., 1l0.l
The court Is Ofthe opinion thar legal iustifica-
ton mas rot been established in this cas- by the
evidence offered. Much has been said in this
case of character, as affecting this question OF
justification, which in the view 10 be presented
i not material TO the decision of this case. y
man, who begins by attempting 10 dafraud his
employers in the execution of public work.
character, publishing his own inlamy in an at
tempt to defame an alleged cO-cOnsprator, is
certainly not model Of public virtue to be either
initiated or praised. Permitting the question of
qualified by tie history of the past, proceed II
consider the vital questions involved ia the case.
Publication Icy the defendant must be proved
beyond reasonable Doubt by the government,
or the case fails. Publication must either
have been shown 10 have taken place in
the office OF the Notary Public Calan
n.
Dil t take place at the Off &c of Calan? |
think not. ] he mere writing OF the affidavit.
ana administering the oath, has never been
he III TO be a publication. II this afiila Wit, a.
subscribed ami sworn to, had been read to a
third person III the Office OF C9llan by the de
tcEGant, or by any one with his consent, and
that fact had been proved a publication wOuld
have been established. But this the evidence
fails TO 90. It was made by Cdllau, subscribed
and sworn to, bat not proved to have been real
by any one III his Office ar in his presence. y
latr Hoo l..
a committee OF Congress i no legal publication.
because this is YsiHD frciT, good ami proper
purpose, and Il Is io- Congress to decide upon
that question.
has publication OF the original libe! been
proved elsewhere Mr.. Kalbfus, manager OF
the Srnf1y HeTad, received a document from
Strong, purpOTting to be an affidavit of defend
ant before Call8n, which he published; and if
this had been the original affidavit, the circum-
stances surrounding the transaction would seem
to have made the conclusion unavoidable, thai
there was proved legal publication.
But the testimony of Strong is-that a copy OF
the original was made; that the original was
taken to be uFed before Congress; that this copy
was never presented to DOnOhO; was never
sworn to before Calan; that its contents were
changed by leaving out several words, and it is
not shown what the words omitted were-wheth-
er material or lmmaterial to the sense or char
scter OF the affidavit. DonohO is not shown to
have had any knowledge of this copy, or the
purpose for which it was made.
1t must not be forgotten that the defendant is
tItIt.cu lI!iS form OF scLlOn 10 the D2neht OF
the shortcomings of the government, and to the
doubt that arises from imperfect proof, or i'm
perfect exhibition of proof. The court, from a
ar. - 80. 80: :;;iJe iGC recited
here, is not satisfied that the government has
established publication by defendant of the
ilbel charged. There ale sUIIit vtnrT points
which ,,rrt made in the case which, under dif:-
ferent circumstances, would have deserved con
sideraton; but from the view taken by the court.
are not necessarily meEi .jned here. 1t may be
proper to notice opc OF these. 1t is alleged that
the information assumes to set forth the libel
Gus publication according to its tenor and
effect, and that by the rules OF pleading, when
this il done, the government is held TO prove
thCm strictly as laid"
This is undoubtedly the case, particularly
where ''wOrds are the gist" OF the offence. Rex
VS.. Powell. East, p. G. SO. The word ''tenor"
implies a correct copy is set out. Where words
''tCnOr and effect used together the same
rule applies, rs the word effect il considered as
surp'usage. Rex VS.. Bear, 2 Salk. Al, Saik,
32i; Lord RAYMOND, AS. Rex vs.. Perry, L.
r.. 2l7; Arch. e. Il. 9Th A. +. DID. PIP. 80 and 80
Wright vs. Clements. 5 Balm x Aid. sos; Cash
Mon. Rep. Commonwealth VS.. Wright, PIP. &c
and C3, 81 Nc. Rep. State W.. BOnney, p-3s3.
The testimony in this case shows that the pub
LEGATION in the Herald Of March II, 1872, was not